Ari Berman | The Nation

Ari Berman

Ari Berman

 On American politics and policy.

Ohio's Secretary of State Subverts Voting Rights

Once again, political experts are predicting that the 2012 presidential election could be decided in the battleground state of Ohio, like it was in 2004.

Remember what happened that year? George W. Bush won the state by a narrow 118,000 votes in an election marred by widespread electoral dysfunction. “The misallocation of voting machines led to unprecedented long lines that disenfranchised scores, if not hundreds of thousands, of predominantly minority and Democratic voters,” found a post-election report by Democrats on the House Judiciary Committee. According to one survey, 174,000 Ohioans, 3 percent of the electorate, left their polling place without voting because of massive lines in urban precincts and on college campuses. Ohio’s Secretary of State that year was Ken Blackwell, co-chairman of the Bush-Cheney re-election campaign.

Ohio’s GOP secretary of state in 2012, Jon Husted, is proving to be a worthy successor to Blackwell. He has banned early voting hours on nights and weekends in Ohio, when it is most convenient for most Ohioans to vote, has fired Democratic election commissioners who challenge his voting restrictions, and is now appealing a court decision reinstating early voting on the three days prior to the election—which the GOP eliminated except for members of the military—to the US Supreme Court. Early voting has already begun in Ohio, but four weeks out until the election, Husted is doing his damndest to confuse the hell out of Ohio voters and undermine their voting rights.

Early voting emerged as a popular reform in Ohio in response to the 2004 election. Nearly 30 percent of Ohioans voted early in 2008. It was only after Barack Obama built a huge lead among early voters in 2008 that Republicans decided to curtail early voting following the 2010 election.

One hundred and forty-eight thousand votes were cast in 2008 during early voting hours eliminated by Husted and the Ohio GOP. The restrictions on early voting disproportionately harm African-American voters, who just so happen to be Obama’s strongest supporters in the state. African-Americans comprise 21 percent of the population in Franklin (Columbus) and Montgomery (Dayton) counties, 24 percent in Hamilton County (Cincinnati) and 28 percent in Cuyahoga County (Cleveland) but accounted for 31 percent, 52 percent, 42 percent and 56 percent of early voters in the respective counties in 2008. (Nearly half of early voters in Franklin County in 2008 cast ballots on nights or weekends.) “I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban—read African-American—voter-turnout machine,” Franklin County Republican Chair Doug Preisse infamously told the Columbus Dispatch in August. Black voters in Cuyahoga County used in-person early voting at a rate twenty-six times greater than whites in 2008, according to a new study by the Lawyers Committee for Civil Rights.

97,000 votes were cast in Ohio in 2008 during the last three days of the election, which Husted and the Ohio GOP want to eliminate (except for Republican-learning members of the military), and two courts recently reinstated. “The majority (57 percent) of these 97,000 votes were cast in thirteen larger counties, disproportionately affecting African-Americans and low-income voters,” found a report from the Northeast Ohio Voter Advocates. The Obama campaign argued in court that it made no sense to allow early voting for members of the military but no one else in Ohio, which the Court of Appeals for the Sixth Circuit recently agreed with. By appealing the ruling to the Supreme Court, Husted is restricting the right of all voters, military voters included.

Responded Bob Bauer, general counsel of the Obama campaign:

There is no justification for the state’s arbitrary actions this year in trying to deny the vast majority of its voters access to open polling places for the last three days before the election. This has been the unanimous conclusion of the courts that have considered this case.

The Secretary of State has now chosen to extend the litigation and to ask the United States Supreme Court to intervene just four weeks before the election. We have no reason to believe that he will meet with any more success now than before.

It is a shame that the Secretary would not have committed his office’s energy instead to implementing the outstanding court orders and administering the orderly and effective early voting process that has served Ohio voters so well since 2005.

The election is twenty-eight days away and Ohio voters still can’t vote during the most convenient times before Election Day—on nights, weekends or the weekend before the election. The prospect of the Supreme Court’s getting involved will add further confusion. Rick Hasen, an elections expert at the UC-Irvine School of Law and the author of The Voting Wars, says the Court may be reluctant to intervene so close to the election, but “if they do take it, I think they would reverse [the lower court].” The Supreme Court intervening on behalf of Republicans to decide a presidential election in a critical battleground state? Sadly it’s happened before.

Obama urges his supporters to vote early in Ohio

For more on battles over voting rights in swing states, check out Kate Sedinger’s report from Nevada.

Courts Block GOP Voter Suppression Laws

In a major victory for voting rights, Judge Robert Simpson of the Commonwealth Court of Pennsylvania ruled today that voters in the state do not need to show government-issued ID in order to cast a ballot in November. A full trial is scheduled for after the election to determine whether a permanent injunction will be issued against the state’s voter ID law. By my count, Pennsylvania is one of eleven voter suppression laws passed by Republicans since the 2010 election that have been invalidated by state or federal courts in the past year, including in crucial swing states like Florida, Ohio and Wisconsin. (Click graphics to enlarge.)

“It is a remarkable development that courts across the country have almost uniformly rejected every single law passed making it harder for eligible citizens to vote,” says Wendy Weiser, director of the democracy program at the Brennan Center. “This is a clear rejection of attempts by politicians to manipulate the election rules for political gain.”

Below are details on the overturned laws, by category.

Voter ID Laws. Courts have nullified voter ID laws in Wisconsin and Texas (and, for now, in Pennsylvania), and a voter ID ballot initiative in Missouri. South Carolina’s law is blocked pending federal approval under Section 5 of the Voting Rights Act.

Voter Registration. A federal court overturned Florida’s restrictions on voter registration drives for violating the First Amendment. Voters in Maine also repealed a ban on Election Day voter registration.

Early Voting. After public outcry, the Ohio legislature repealed its own legislation cutting back on early voting days, but kept a ban on three days of early voting before the election, which a state court subsequently overturned (Ohio is appealing). A federal court blocked early voting limits in Florida in five counties covered by Section 5 of the Voting Rights Act for discriminating against African-American voters.

Voter Purges. A district court in Iowa blocked an attempt by Iowa Secretary of State Matt Schultz to purge so-called “non-citizen” voters from the rolls.

Student Voting. A New Hampshire court ruled that students do not have to register their car in the state in order to cast a ballot.

Provisional Ballots. An Ohio judge ruled that provisional ballots mistakenly cast in the wrong precinct must be counted.

It’s important to note, however, that voter suppression laws passed since 2010 have not been blocked unanimously. Kansas and Tennessee have new strict voter ID laws on the books for 2012, and Rhode Island and Virginia mandated looser voter ID laws (allowing some forms on non-photo ID). A strict voter ID initiative is on the ballot this November in Minnesota. Restrictions on voter registration drives are still in place in Texas (the law was blocked in district court, but reinstated on appeal). Early voting periods have been limited in Tennessee, West Virginia and most of Florida (excluding the five counties subject to Section 5). Ex-felons will be unable to cast a ballot upon release in Florida and Iowa. Florida has resumed its stalled voter purge, albeit on a smaller scale, and without the cooperation of local election officials. (For more details, see this comprehensive summary on voting law changes from the Brennan Center.)

That said, the pushback against these laws in court has been rather extraordinary, sending a strong signal that restrictions on the right to vote are unconstitutional, discriminatory and unnecessary.

A Recent History of GOP Voter Suppression in Florida

The state of Florida has an unfortunate history of disenfranchising voters. We all remember the “hanging chads” of 2000. Less well-known is how Florida wrongly labeled 12,000 eligible voters as felons, 41 percent of whom were African-Americans, and kicked them off the voting rolls that year, which could have very well cost Al Gore the election. Florida attempted another controversial voter purge in 2004, but was forced to scrap the plan after public outcry (history is repeating itself this year). The 2008 election, however, was noticeably smooth in the Sunshine State, producing a surprising victory for Barack Obama.

Following the 2010 election, Florida Republicans concluded that it was a little too easy to vote in the state. “I want the people in the State of Florida to want to vote as bad as that person in Africa who is willing to walk 200 miles for that opportunity he’s never had before in his life,” said GOP State Senator Michael Bennett. “This should not be easy.”

Upon taking office in 2011, Florida Governor Rick Scott and the Republican legislature drastically changed the state’s election laws by preventing ex-felons from being able to cast a ballot after serving their time, cutting back early voting from fourteen to eight days, and severely restricting voter registration drives.

As I reported in Rolling Stone:

In May [2011], the GOP-controlled legislature in Florida passed a law requiring anyone who signs up new voters to hand in registration forms to the state board of elections within 48 hours of collecting them, and to comply with a barrage of onerous, bureaucratic requirements. Those found to have submitted late forms would face a $1,000 fine, as well as possible felony prosecution.

As a result, the law threatens to turn civic-minded volunteers into inadvertent criminals. Denouncing the legislation as “good old-fashioned voter suppression,” the League of Women Voters announced that it was ending its registration efforts in Florida, where it has been signing up new voters for the past 70 years.

The voter registration restrictions seem particularly ironic in light of the escalating scandal involving Strategic Allied Consulting, the RNC-funded GOP voter registration firm, run by a Republican operative with a history of bad behavior, recently accused of submitting fraudulent voter registration forms in Florida and elsewhere. The scandal makes Republican claims about ACORN sound more than a little ridiculous.

Florida Republicans invoked ACORN as the reason for the voter registration restrictions in 2011, even though ACORN was out of existence by that point. “Can you spell ACORN?” State Representative Dennis Baxley, chief sponsor of the law, told reporters at the time. “Or have you forgot all about that, and some of the problems that we had?”

Yet the law change appeared to be more about political payback than a sincere concern about voter registration fraud. “The first major imposition of restrictions on voter registration drives occurred in 2005, a year after ACORN’s community organizing work resulted in enough signatures to place a citizen initiative on the ballot to increase Florida’s minimum wage,” the Brennan Center for Justice reported. The 2005 law was subsequently blocked in court. But it was taken up again and passed by Republicans in 2011.

From my reporting:

The registration law took effect one day after it passed, under an emergency statute designed for “an immediate danger to the public health, safety or welfare.” In reality, though, there’s no evidence that registering fake voters is a significant problem in the state. Over the past three years, the Florida Department of Law Enforcement has received just thirty-one cases of suspected voter fraud, resulting in only three arrests statewide. “No one could give me an example of all this fraud they speak about,” said Mike Fasano, a Republican state senator who bucked his party and voted against the registration law. What’s more, the law serves no useful purpose: Under the Help America Vote Act passed by Congress in 2002, all new voters must show identity before registering to vote.

A fact-check from the Tampa Bay Times and PolitiFact Florida labeled as “false” the claim by GOP State Representative Eric Eisnaugle that “Mickey Mouse was registered to vote [in Florida],” and that voter registration fraud by ACORN in 2008 necessitated the new voting restrictions.

According to the paper:

Eleven people hired by ACORN to register potential voters near Homestead were accused of falsifying hundreds of voter registration applications.

ACORN actually turned in the hired workers after officials noticed the discrepancies in the cards. The group of workers turned in 1,400 cards, of which 888 were found to be fraudulent. Included among the fraudulent voter applications: deceased actor Paul Newman.

No one voted in the election using the fraudulent voter applications.

In May 2012 a federal judge blocked the most egregious provisions of the law for violating the First Amendment, and another judge formally overturned it at the end of August. Yet the damage had been done, as groups like the League of Women Voters and Rock the Vote were forced to shutter their voter registration efforts for a year during a crucial presidential election. “The entire year was lost for voter registration in Florida,” says Deidre Macnab, president of the Florida League of Women Voters. “The law had a major impact on students, minorities and the elderly.” The voter suppression efforts worked as intended for the GOP—between July 2011 and July 2012, Republicans added 128,039 new voters to the rolls but Democrats registered just 11,365 new voters.

[UPDATE: University of Florida elections expert Daniel Smith says the numbers I linked to above, from the Florida Times Union, are not accurate. "According to the state’s official records, more than 155k voters registered as Democrats in 2011," writes Smith. "Slightly less than 138k voters registered as Republicans in 2011." But the law did hurt Democrats more than Republicans: "28.1% fewer Floridians registered as Democrats in 2011 compared to 2007, and 15.5% fewer Floridians registered as Republicans in 2011 compared to 2007."]

In a deeply sardonic twist, Republicans committed the only voter registration fraud that has occurred since the law was overturned. “It’s kind of ironic that the dead people they accused Acorn of registering are now being done by the RPOF [Republican Party of Florida],” Paul Lux, the Republican supervisor of elections in Okaloosa County, told NBC News.

And, unlike with ACORN, Strategic Allied Consulting didn’t alert authorities to the voter registration fraud—that was done by local election officials. Prosecutors are now investigating the group for criminal misconduct. (The case hasn’t put an end to GOP hypocrisy about voter fraud, however. Last week the attorney general of Texas invoked ACORN to justify similar restrictions on voter registration drives in his state, even though no charges were ever filed against the group.) Maybe in 2013 the Florida legislature should pass legislation specially preventing Republicans from running voter registration drives.

Here’s why this scandal matters: the Florida GOP committed voter registration fraud while undermining the right to vote for everyone else—particularly minority voters, who have been historically disenfranchised in the state and are key supporters of Barack Obama and Florida Democrats. The common thread between these different voter suppression efforts has been to make it more difficult for minority voters to cast a ballot.

• Data from the 2004 and 2008 elections in Florida show that “African-American and Hispanic citizens are about twice as likely to register to vote through drives as white voters,” according to Project Vote.

• African-Americans in Florida were twice as likely to cast ballots during early voting in 2008 as white voters. According to University of Florida political scientist Daniel Smith, 800,000 voters in Florida cast ballots during early voting hours in 2008 eliminated by the GOP. A federal court overturned the law in the five Florida counties covered by Section 5 of the Voting Rights Act.

• An executive order by Scott mandating that felons convicted of nonviolent crimes wait up to seven years before receiving their voting rights disenfranchised nearly 200,000 Floridians who would have been eligible to vote in 2012. Blacks are 13 percent of registered voters in Florida, but 23 percent of disenfranchised felons. (See Brentin Mock’s excellent new story, “Has Florida Created a Trap at the Polls for Ex-Felons?”)

• Eighty percent of the so-called “non-citizen” voters on Florida’s inaccurate and discriminatory purge list were people of color (only one non-citizen on that list of 2,600 was found to have actually voted). Florida has restarted the purge on a reduced scale—but election officials may once again refused to implement it.

So remember this: Republican voter suppression efforts in Florida have been far more destructive than simply handing in a few hundred fraudulent voter registration forms.

The 'Lazy' '47 Percent' Vote

This week video emerged of Mitt Romney at a May fundraising event alleging that 47 percent of the electorate would vote for Barack Obama because they are “dependent upon government” and “believe that they are victims.”

Romney has subsequently backtracked from his remarks, saying last night “my campaign is about the 100 percent of America.” But at least some high-profile Republicans are continuing to defend Romney’s factually inaccurate statement—and linking his words to GOP efforts to restrict the right to vote. Listen to what Pennsylvania Representative Daryl Metcalfe, chief sponsor of the state’s voter ID law, said in a radio interview yesterday:

HOST: Are you absolutely convinced…that the methods to implement this law are effective and will in fact make sure no legitimate voter will be disenfranchised?

METCALFE: I don’t believe any legitimate voter that actually wants to exercise that right and takes on the according responsibility that goes with that right to secure their photo ID will be disenfranchised. As Mitt Romney said, 47% of the people that are living off the public dole, living off their neighbors’ hard work, and we have a lot of people out there that are too lazy to get up and get out there and get the ID they need. If individuals are too lazy, the state can’t fix that.

This is a remarkable statement. Metcalfe seems to honestly believe that up to 12 percent of registered voters without ID—which includes students, the elderly, minorities, the poor, the disabled and veterans—are simply too “lazy” to vote. He seems unaware that longtime voters in Pennsylvania are waiting four hours in line just to obtain a voter ID that was never required in any previous election and remains unnecessary today—since the state has admitted that there is no voter fraud in Pennsylvania that a voter ID law would stop. He doesn’t seem to realize that nine counties in Pennsylvania don’t even have a PennDOT office, thirteen counties have an office that is open only one day a week and Philadelphia has five offices for over 1 million registered voters, where the lines are routinely two to three hours long. And he doesn’t seem to understand that Commonwealth Court Judge Robert Simpson estimated that anywhere from 100,000 to 500,000 registered voters in Pennsylvania don’t have voter ID but the state has issued only 9,000 voter IDs since the law went into effect.

“The Commonwealth’s interest in the implementation of this law, at least as concerns the November election, is somewhere from slight to symbolic,” wrote Pennsylvania Supreme Court Justice Seamus McCaffery this week. As the court noted, it is the responsibility of the state to make sure every voter has the opportunity to cast a ballot, which is why new hearings are scheduled for later this month to decide whether the state is complying with its own law.

So who is Daryl Metcalfe? Like many Republicans, he’s been a member of the American Legislative Exchange Council for over a decade. The conservative group drafted mock voter ID legislation that is remarkably similar to the bill that Melcalfe introduced in the legislature. He says, “I was a Tea Partier before it was cool,” and is best known for introducing “birther” legislation requiring a presidential candidate to produce a birth certificate before running for office. He’s been linked to right-wing anti-immigrant hate groups and has been dubbed the legislature’s “most prominent critic of gays.”

Yet his radical views seem hardly outside the mainstream of the current Republican Party. He is chairman of the State Government Committee in the Pennsylvania House of Representatives, and the driving force behind the state’s voter ID bill, which gives you a pretty good sense of just how partisan this law really is. Instead of trying to expand its tent, the GOP of today is committed to preventing those “lazy,” “dependent on government” voters from going to the polls.

For more on the Pennsylvania ID law, check out Voting Rights Watch’s latest coverage.

Is Pennsylvania's Voter ID Law Headed for Defeat?

The Pennsylvania Supreme Court today vacated a lower-court decision upholding the state’s voter ID law, instructing Commonwealth Court Judge Robert Simpson to rehear the case, looking specifically at whether the state is doing enough to make sure that every eligible Pennsylvania voter has the right ID to cast a ballot. The supreme court, in a 4-2 decision, found a “disconnect between what the Law prescribes and how it is being implemented,” and noted that “if the Law is enforced in a manner that prevents qualified and eligible electors from voting, the integrity of the upcoming General Election will be impaired.”

Two key sections of the court decision:

Overall, we are confronted with an ambitious effort on the part of the General Assembly to bring the new identification procedure into effect within a relatively short timeframe and an implementation process which has by no means been seamless in light of the serious operational constraints faced by the executive branch. Given this state of affairs, we are not satisfied with a mere predictive judgment based primarily on the assurances of government officials.

…We will return the matter to the Commonwealth Court to make a present an assessment of the actual availability of the alternate identification cards on a developed record in light of the experience since the time the cards became available. In this regard, the court is to consider whether the procedures being used for deployment of the cards comport with the requirement of liberal access which the General Assembly attached to the issuance of PennDOT identification cards. If they do not, or if the Commonwealth Court is not still convinced in its predictive judgment that there will be no voter disenfranchisement arising out of the Commonwealth’s implementation of a voter identification requirement for purposes of the upcoming election, that court is obliged to enter a preliminary injunction.

The important takeaway from the ruling is that the supreme court shifted the burden of proof from the plaintiffs, who in lower court had to show that eligible voters would be disenfranchised by the law, to the state, who now has to prove that voters will not be disenfranchised. That’s why lawyers for the plaintiffs, which includes the ACLU and the Advancement Project, are optimistic about the chances of receiving a preliminary injunction when the Commonwealth Court rehears the case, possibly as soon as next week. A decision is mandated by October 2. “It’s certainly a victory in that it vacates the adverse decision from below,” said David Gersch, the lead lawyer for the plaintiffs. Gersch wanted an injunction against the law but said that today’s ruling has “gotten us partway there.” He said the state would have a tougher time making their case under the new standard mandated by the supreme court. Judge Simpson has “got to determine, without relying on assurance from the government, that no voters are being disenfranchised,” said Gersch. “That’s a very tough burden to meet.”

The case is now less about the constitutionality of voter ID laws and more about the difficulties of obtaining the right ID. Under the new voter ID law, acceptable forms of ID include a driver’s license, Department of Transportation (PennDOT) ID, passport, military ID or an ID issued by state or city governments, nursing homes or accredited colleges and universities, provided they have an expiration date on them (which many do not). To get a “free” voter ID from PennDOT you need two proofs of residency, along with a Social Security card and a birth certificate—which not everyone has and which costs money to obtain. Under public pressure, the state began issuing a voting-only “safety net” ID at the end of August that only requires a Social Security number and two proofs of residency.

In the lower-court decision, Judge Simpson concluded that the number of registered voters without valid voter ID “is somewhat more than 1 percent and significantly less than 9 percent,” which leaves anywhere from 100,000 to 500,000 voters, according to conservative estimates, without ID. Yet Vic Walczak, legal director for the Pennsylvania ACLU, noted that the state has issued only 9,000 voter IDs since the law went into effect in March. Six thousand of them have been issued since the trial in August, which equals less than 1,000 a week. Even if the state doubled the number of voter IDs it issued per week, that would still mean only 25,000 voters obtained the right ID—a number far below the 100,000–500,000 registered voters without ID. “That’s a significant gap,” Walczak said—and a disparity that should be a major focus of the new trial.

Moreover, obtaining voter ID can be a hellishly difficult process in Pennsylvania. According to the Pennsylvania Budget and Policy Center, “Nine rural counties have no driver’s license centers at all, and in an additional 20 counties containing 1.5 million people, Driver License centers are open three or fewer days a week. Only seven of 67 counties have more than one driver’s license center.” Philadelphia has five PennDOT offices in a city with over a million registered voters. This was the line when I visited a location in downtown Philadelphia on Friday afternoon—at least a hundred people were there, and the wait was well over an hour.

The Washington Post recounted a story of one longtime voter who waited four hours just to get her voter ID. It’s not uncommon for voters to wait for hours and then be told by a PennDOT worker that they have to pay $13.50 for what is supposed to be a free ID or that the don’t have the right documentation. Despite the availability of the new “safety net” ID, “‘people are being turned away,” said Marian Schneider of the Advancement Project.

“The Commonwealth’s interest in the implementation of this law, at least as concerns the November election, is somewhere from slight to symbolic,” wrote Judge Seamus McCaffery in his dissent. For that reason, the supreme court should’ve immediately issued a preliminary injunction against the law, wrote Judges McCaffery and Todd in their dissents.

Wrote McCaffery:

I was elected by the people of our Commonwealth, by Republicans, Democrats, Independents and others, as was every single Justice on this esteemed Court. I cannot now be a party to the potential disenfranchisement of even one otherwise qualified elector, including potentially many elderly and possibly disabled veterans who fought for the rights of every American to exercise their fundamental American right to vote. While I have no argument with the requirement that all Pennsylvania voters, at some reasonable point in the future, will have to present photo identification before they may cast their ballots, it is clear to me that the reason for the urgency of implementing Act 18 prior to the November 2012 election is purely political. That has been made abundantly clear by the House Majority Leader [Mike Turzai, who said the voter ID law “is going to allow Governor Romney to win the state of Pennsylvania”]. I cannot in good conscience participate in a decision that so clearly has the effect of allowing politics to trump the solemn oath that I swore to uphold our Constitution. That Constitution has made the right to vote a right verging on the sacred, and that right should never be trampled by partisan politics.

Concurred Todd:

Forty-nine days before a presidential election, the question no longer is whether the Commonwealth can constitutionally implement this law, but whether it has constitutionally implemented it. Despite impending near-certain loss of voting rights, despite the Commonwealth's admitted inability thus far to fully implement Act 18 and its acceptance that, presently, “the Law is not being implemented according to its terms,” and despite the majority's concession that the “most judicious remedy” in such circumstances would be to grant an injunction, the majority nonetheless allows the Commonwealth to virtually ignore the election clock and try once again to defend its inexplicable need to rush this law into application by November 6, 2012.

She concluded: “The eyes of the nation are upon us, and this Court has chosen to punt rather than to act.”

Pennsylvania isn't the only state where voting rights are being attacked. Check out The Nation's Voting Rights Watch 2012 collaboration with Colorlines.com.

'Nightmare' Pennsylvania Voter ID Law Revisited in Court

Philadelphia, PA—A wave of new voting restrictions have been struck down by the courts in recent weeks. A major exception is Pennsylvania, where Commonwealth Court Judge Robert Simpson, a Republican, declined to issue a preliminary injunction against the state’s controversial voter ID law on August 15. Today in Philadelphia, the Pennsylvania Supreme Court convened in a packed, standing-room-only courtroom to revisit the law. A decision is expected in the next few weeks to determine whether Pennsylvania will be the largest swing state with a new, restrictive voter ID law on the books for the 2012 election.

David Gersch, the lead lawyer for the plaintiffs (which include voting rights groups such as the ACLU and the Advancement Project), argued that Judge Simpson erred in failing to conclude that Pennsylvania’s voter ID law “impermissibly violates the right to vote.” Gersch noted the significance of holding the hearing in Philadelphia, “the birthplace of American democracy,” in a state whose constitution explicitly protects the right to vote.

Gersch asked, once again, for an injunction against the law based on three major points: (a) “the right to vote is a fundamental right” harmed by the law; (b) the voter ID law was not a mere election regulation but something far more significant and burdensome; and (c) the law was not narrowly tailored toward its legislative goal of stopping voter fraud.

Toward that end, Gersch offered three major facts that are central to the case: (1) Pennsylvania has already admitted in court filings that there is no evidence of in-person voter impersonation that a voter ID law would stop; (2) that hundreds of thousands of registered Pennsylvania voters do not have the new voter ID; and (3) that many of these registered voters without voter ID will have difficulty obtaining an ID, either because they can’t get, or afford, the underlying documents, like a birth certificate, needed to receive a Pennsylvania Department of Transportation (PennDOT) ID or can’t easily make it to a PennDOT office, which have limited hours and locations.

Gersch noted that the election is only fifty-four days away and yet the state remains unprepared to implement the law and doesn’t seem committed to ensuring that every registered Pennsylvania voter has the opportunity to cast a ballot. “The vice is not in requiring photo ID,” he said. “The vice is requiring a photo ID that not everyone has and has trouble getting.”

The number of voters who don’t have ID has varied wildly according to estimates, ranging from 1 percent to 12 percent of registered voters. The state initially alleged that 99 percent of voters had ID, but a state official admitted that figure was calculated in less than twenty-four hours with limited data. A Department of Transportation study found that 758,000 registered voters did not have a PennDOT ID—a number the state disputes. University of Washington political scientist Matt Baretto, a witness for the ACLU, found that more than 1 million registered voters didn’t have valid voter ID. Judge Simpson said that the number “is somewhat more than 1 percent and significantly less than 9 percent,” which still leaves 100,000 to 500,000 registered voters without ID, Gersch noted. Yet only 6,000 voters have thus far obtained a Penndot ID for the purposes of voting. “I would suspect that we would not be anywhere close to issuing 10,000 of those cards,” said Kurt Myers, deputy secretary of safety administration at PennDOT.

There’s an alarming gap between the number of people who need to get ID and the number of people who’ve already obtained them. “The immediate harm is the disenfranchisement of thousands of Pennsylvanians?” Judge Seamus McCaffery, a Democrat, asked Gersch.

“Yes,” Gersch responded.

And Pennsylvania has made scant preparation to make sure every registered voter gets the required ID. “If the Commonwealth had a process to get everyone ID, this case wouldn’t be necessary,” Gersch said. Nine counties in Pennsylvania have no PennDOT office. In thirteen counties, the office is only open one day a week—which gives voters roughly seven opportunities between now and Election Day to obtain the right ID. Half of PennDOT offices don’t provide a voter ID or are open only one or two days a week. “It sounds a little bit like a nightmare,” said Judge Debra Todd, a Democrat.

Gersch recommended steps to make it easier for people to vote based on reforms undertaken in other states: mail a voter ID to every voter (like in Virginia), allow everyone to vote via absentee ballot (like in Georgia), provide mobile DMVs (also in Georgia), allow voters to sign an affidavit attesting to their identity if they don’t have photo ID (like in Michigan). “Pennsylvania is a case study in how not to do this,” Gersch said. “There’s too little time, too many people affected, no guarantee every qualified elector can cast a ballot.” The state only relaxed the ID requirements at the end of last month, allowing a “safety net” ID for people who’ve exhausted every other option, which simply requires a name, address, Social Security number and proof of residency to get an ID. It remains to be seen how many people will learn about, and take advantage of, this latest change to the law.

Judge Thomas Saylor, a Republican, asked Alfred Putnam, a lawyer for the state, if there was a statute in the law that authorized the new backup ID. Putnam said there was not; the change was instituted via administrative rule by Secretary of the Commonwealth Carole Aichele, whose husband is now Pennsylvania Governor Tom Corbett’s chief of staff. Putnam blamed the media for stirring fears of voter disenfranchisement. “We don’t believe there are countless numbers out there who can’t get ID—that’s what the newspapers say!”

Several justices noted that the Pennsylvania Bar Association recommended that the voter ID law be implemented over the course of two federal election cycles. “What’s the rush?” Judge Todd asked John Knorr, another lawyer for the state. “Would it be better if we had two years and not fifty-five days?”

“It would be better,” Knorr said.

Putnam said that the legislature passed the law in March 2012 because of “declining confidence in our electoral system.” The irony is that, as a result of confusion and anger over the law, confidence in the integrity of Pennsylvania’s elections has never been lower. Indeed, Judge McCafferey referenced Pennsylvania House Majority Leader Mike Turzai’s infamous statement that the voter ID law “is gonna allow Governor Romney to win the state of Pennsylvania.”

The state Supreme Court is split 3-3 between Democrats and Republicans (a fourth Republican judge was suspended after using public funds on her campaign). Thus four votes are needed to overturn the lower court’s decision. The Democratic judges spoke frequently and asked pointed questions of the state. The Republicans judges, with the occasional exception of Saylor, said almost nothing. Chief Justice Ronald Castille, who overturned the GOP’s redistricting plans and is thought to be the swing justice on the court, stayed mostly silent and appeared irritated, at times, with the outspoken Democrats. “We got three votes but that doesn’t help us,” Vic Walczak, legal director for the Pennsylvania ACLU, told me after the hearing. “We need a fourth.”

For more on Pennsylvania and other states’ voting laws, see The Nation's Voting Rights Watch.

John Lewis: GOP 'Still Trying to Stop People From Voting'

Representative John Lewis of Georgia was brutally beaten while marching for the right to vote during “Bloody Sunday” in Selma, Alabama, in 1965. The brave activism of Lewis and so many others in the segregated South led to the passage of the landmark Voting Rights Act of 1965. At the Democratic convention tonight, Lewis told his own story and strongly rebuked efforts by Republican legislators to restrict the right to vote since the 2010 election. Here are his remarks. They are worth quoting in full:

I first came to this city in 1961, the year Barack Obama was born. I was one of the thirteen original “Freedom Riders.” We were on a bus ride from Washington to New Orleans trying to test a recent Supreme Court ruling that banned racial discrimination on buses crossing state lines and in the stations that served them. Here in Charlotte, a young African-American rider got off the bus and tried to get a shoeshine in a so-called white waiting room. He was arrested and taken to jail.

On that same day, we continued on to Rock Hill, South Carolina, about 25 miles. From here, when my seatmate, Albert Bigelow, and I tried to enter a white waiting room, we were met by an angry mob that beat us and left us lying in a pool of blood. Some police officers came up and asked us whether we wanted to press charges. We said, “No, we come in peace, love and nonviolence.” We said our struggle was not against individuals, but against unjust laws and customs. Our goal was true freedom for every American.

Since then, America has made a lot of progress. We are a different society than we were in 1961. And in 2008, we showed the world the true promise of America when we elected President Barack Obama. A few years ago, a man from Rock Hill, inspired by President Obama’s election, decided to come forward. He came to my office in Washington and said, “I am one of the people who beat you. I want to apologize. Will you forgive me?” I said, “I accept your apology.” He started crying. He gave me a hug. I hugged him back, and we both started crying. This man and I don’t want to go back; we don’t want to go back.

Brothers and sisters, do you want to go back? Or do you want to keep America moving forward? My dear friends, your vote is precious, almost sacred. It is the most powerful, nonviolent tool we have to create a more perfect union. Not too long ago, people stood in unmovable lines. They had to pass a so-called literacy test, pay a poll tax. On one occasion, a man was asked to count the number of bubbles in a bar of soap. On another occasion, one was asked to count the jelly beans in a jar—all to keep them from casting their ballots.

Today it is unbelievable that there are Republican officials still trying to stop some people from voting. They are changing the rules, cutting polling hours and imposing requirements intended to suppress the vote. The Republican leader in the Pennsylvania House even bragged that his state’s new voter ID law is “gonna allow Governor Romney to win the state.” That’s not right. That’s not fair. And that is not just.

And similar efforts have been made in Texas, Ohio, Florida, Wisconsin, Arizona, Georgia and South Carolina. I’ve seen this before. I’ve lived this before. Too many people struggled, suffered and died to make it possible for every American to exercise their right to vote.

And we have come too far together to ever turn back. So Democrats, we must not be silent. We must stand up, speak up and speak out. We must march to the polls like never, ever before. We must come together and exercise our sacred right. And together, on November 6, we will re-elect the man who will lead America forward: President Barack Obama.

Earlier today I attended an event organized by the DNC’s Voting Rights Institute, where Lewis spoke. The overwhelming theme of the panel was how the voter suppression laws passed by Republicans in the past two years take us back to a frighteningly dark period in our country’s history. MSNBC host/Nation columnist Melissa Harris-Perry likened the fights of today to the post-Reconstruction era of 1880-1910, when white segregationists passed a slew of laws undermining the right to vote for newly emancipated black voters following the Civil War. “[Republicans] went back to the older playbook—you use the law to suppress the vote,” said NAACP President Ben Jealous, who called strict voter ID laws “the new poll tax.”

According to Susan Falck, a research associate at California State University–Northridge, twenty-nine laws restricting the right to vote were passed in the United States from 1865–1967. According to the Brennan Center for Justice, twenty-five laws restricting the right to vote have been passed from 2011–12. Eight of eleven states in the former confederacy have passed laws aimed at suppressing minority voters since the 2010 election. These are unbelievable statistics—and make one wonder why the likes of Lewis aren’t speaking in prime time.

Bill Clinton touched on this alarming trend at the end of his speech last night, saying “it is wrong to change voting procedures just to reduce the turnout of younger, poorer, minority and disabled voters.” Clinton forcefully attacked GOP voter suppression at greater length on Tuesday night during an event with the Arkansas Democratic Party.

Democratic Party leaders are belatedly recognizing the moral and political consequences of the war on voting—a subject Lewis knows all too well. Said Lewis this morning: “There are folks on the other side who want to steal the election before it even takes place.”

Howard Dean: The Case for Obama

On Wednesday afternoon I caught up with Howard Dean, former presidential candidate and chair of the Democratic Party from 2005–08, for a conversation about Obama’s chances, Paul Ryan’s lies, the impact of unlimited Super PAC money and new voting restrictions on American democracy, and the status of the “Democratic wing of the Democratic Party.”

Ari Berman: You were chair of the Democratic Party during the last Democratic convention. How is this one different?

Howard Dean: Like Denver, this is a swing state. And I might add that Obama won Colorado last time, so we have high hopes for North Carolina.

If the election were today what would happen?

I think we’d win. Nate Silver has Obama winning 293 electoral votes [Editor’s note: Silver projects Obama winning 310 electoral votes]. If the election was held today, we’d win Virginia, which I think we will definitely win anyway, and Ohio and Florida. You can’t win if you’re a Republican if you don’t take even one of those states. I think we’ll win Virginia, and one of the two of Ohio or Florida, maybe both.

The problem for Romney is that middle-class people know he doesn’t care about them, and no matter what he does he can’t change that.

What does the president need to say in his speech tonight and about the economy in general going forward?

If I were the president, I would leave the attacking of Republicans to others. I think they’ve pretty much been shredded, some of which they’ve done themselves. I would pretty much just talk about my positive agenda for the economy. What specifically would he like to do? Some of the things he’d like to do he’s been trying to do for two years and McConnell has refused to let him do anything, which I think is un-American really. So I’d be really specific about my plans. The Republicans have no specifics whatsoever other than cut taxes for millionaires and I don’t think that’s a program most Americans can relate to.

Have Democrats done a good enough job of defining Paul Ryan?

I think Paul Ryan has done a pretty good job of defining himself. Oddly enough, Paul Ryan’s demise as a candidate who can be taken seriously happened at his own hands. The lies about the General Motors plant and the Simpson-Bowles study [during his RNC speech] were bad but they were sort of within a political context. Lots of people lie in politics. When he lied about his performance in the marathon, you can’t do that… It’s like cheating in golf. You do that and you kind of wonder why you should lead the country?

What impact will all the Super PAC money have on the last two months of the election?

It’s going to be tough. There’s going to be more mud thrown around than you can possibly imagine. The good news is that most people have already made up their minds about the election.

What impact will new voting restrictions passed by Republicans have in states like Pennsylvania, Ohio and Florida?

I think it will hurt too. I think we’re going to win in Pennsylvania anyway, but we have a lot of work to do. I think it’s pretty despicable of the Republican Party to decide they’re trying to disenfranchise people. We know it was a Republican strategy because we’ve seen the bills that ALEC has suggested. This is really a group of pretty repulsive people who think it’s OK to win by taking people’s right to vote away.

What do you think Democrats should do in response to those voting restrictions?

I think we continue to do what we’ve been doing. It’s another reason we need President Obama, so we have a Supreme Court that obeys the law and follows the Constitution. There’s nothing in the Constitution that says you ought to take away people’s right to vote. Voting is a right. It’s not like getting on an airplane…. Republicans say they want small government, but not when they want to invade your bedroom, and tell you when you can and can’t vote, and what picture you need to vote.

When you ran for president you famously said you wanted to represent the Democratic wing of the Democratic Party. What sort of shape is it in today?

Much better. Because this is a base election. We’ve gotten a lot. We can complain about healthcare but what I say to progressives is, You’ve complained for three years, now you get in line for the fourth year. This is the fourth quarter. The differences for the future of the country are enormous, not just for the people we care about but for our own families and democracy itself. Long-term, you can’t have a democracy which is based on the ability of corporations to buy elections. And that’s what the Supreme Court has allowed by a narrow 5-4 margin. We’ve got to reverse that and have a country where ordinary people matter again, and that’s what the Obama election is all about.

Elizabeth Warren to Romney: 'Corporations Are Not People'

During the GOP primary, Mitt Romney said that public concern about income inequality and Wall Street excess amounted to “envy” and “class warfare.” The not-so-subtle theme of the RNC was that Obama and the Democrats resented “success.”

Tonight Elizabeth Warren offered a powerful defense of economic populism and a stinging rejoinder to Romney & Co. Here’s a key section from her remarks:

People feel like the system is rigged against them. And here’s the painful part: they’re right. The system is rigged. Look around. Oil companies guzzle down billions in profits. Billionaires pay lower tax rates than their secretaries. And Wall Street CEOs—the same ones who wrecked our economy and destroyed millions of jobs—still strut around Congress, no shame, demanding favors and acting like we should thank them.

Does anyone here have a problem with that? Well, I do too. I talk to small-business owners all across Massachusetts. And not one of them—not one—made big bucks from the risky Wall Street bets that brought down our economy. I talk to nurses and programmers, salespeople and firefighters—people who bust their tails every day. And not one of them—not one—stashes their money in the Cayman Islands to avoid paying their fair share of taxes.

These folks don’t resent that someone else makes more money. We’re Americans. We celebrate success. We just don’t want the game to be rigged.

No one, according to Warren, represents the “rigged game” better than Romney.

And Mitt Romney? He wants to give tax cuts to millionaires and billionaires. But for middle-class families who are hanging on by their fingernails? His plans will hammer them with a new tax hike of up to $2,000 dollars. Mitt Romney wants to give billions in breaks to big corporations—but he and Paul Ryan would pulverize financial reform, voucher-ize Medicare and vaporize Obamacare.

The Republican vision is clear: “I’ve got mine, the rest of you are on your own.” Republicans say they don’t believe in government. Sure they do. They believe in government to help themselves and their powerful friends. After all, Mitt Romney’s the guy who said corporations are people.

No, Governor Romney, corporations are not people. People have hearts, they have kids, they get jobs, they get sick, they cry, they dance. They live, they love and they die. And that matters. That matters. That matters because we don’t run this country for corporations, we run it for people. And that’s why we need Barack Obama.

Warren wasn’t always a favorite in Obama’s inner circle—after all, the Obama administration bent to the bank lobby and declined to name her permanent director of the Consumer Financial Protection Bureau she created. But Obama’s campaign theme of economic fairness has been influenced by Warren as much as anybody else. If she has her way, the campaign really will be a contrast of two drastically different economic philosophies. Democrats stumbled in 2010 by seeming as if they prioritized Wall Street over Main Street. Romney gives them a perfect opportunity to correct that wrong. Obama stands the best shot at getting re-elected by making the election a choice between fairness and greed, with Romney and his corporate allies as the unabashed defenders of a new Gilded Age.

Bill Clinton: GOP Voter Suppression Laws a Sign of Desperation

At an event on Tuesday night organized by the Arkansas Democratic Party, former President Bill Clinton offered a preview of his prime-time speech at the Democratic Convention tomorrow. He defended Obama’s stimulus and healthcare plans, and ridiculed GOP efforts to blame Obama for the national debt, saying, “They built it.”

At the end of his speech, Clinton took aim at the GOP for passing laws across the country that will restrict the right to vote for minority, low-income, young and elderly voters, singling out the swing states of Pennsylvania and Ohio as the worst offenders. Said Clinton:

“Do you really want to live in a country where one party is so desperate to win the White House that they go around trying to make it harder for people to vote if they’re people of color, poor people or first generation immigrants?

“In Pennsylvania, where they passed all these voter ID requirements, the House Republican leader who passed it said it was one of the most important achievements because it will enable Governor Romney to defeat the president in Pennsylvania.

“In Ohio, they passed the whole nine yards. The problem was in Ohio you can actually put this stuff on the ballot pretty easily to overturn it. So they went back in—you gotta give it to Republicans, they’re good. They vetoed it, then they snuck in an end to advance voting. Then they allowed the counties—and every county in Ohio has an election commission of three Democrats and three Republicans—to decide if they were going to go around advance voting. The Democrats, we were for it. So in every county that was Republican, Democrats said ‘OK, we’ll have advance voting.’ And in every single county that is overwhelming Democratic, the Republicans voted against allowing advance voting.

“This is not complicated—America is becoming more diverse and younger and more vibrant. We’re younger than Europe, we’re younger than Japan and in twenty years we’ll be younger than China.”

And, as Clinton told student activists at the Campus Progress conference last year, the GOP is responding to that growing diversity not by courting minority voters but by making it harder for them to cast a ballot. Said Clinton in July 2011:

“One of the most pervasive political movements going on outside Washington today is the disciplined, passionate, determined effort of Republican governors and legislators to keep most of you from voting next time. There has never been in my lifetime, since we got rid of the poll tax and all the other Jim Crow burdens on voting, the determined effort to limit the franchise that we see today.…

“Why is all this going on? This is not rocket science. They are trying to make the 2012 electorate look more like the 2010 electorate than the 2008 electorate.”

How successful Republicans are at this voter suppression effort will be one of the major factors that determines the outcome of the 2012 election.

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