Thursday, October 11, 2018

How and why our democracy might become Republican roadkill on the judicial highway ...

… and what we can do about it.

If you ask an average bloke (or blokette) what makes our democracy a democracy, there are a number of things that could be said. At the top of my list, is the principle and practice of voting by the people. Because of the never ending attempts at voter suppression, I fear for that practice and I therefore fear for our democracy.

This post is about a recent Supreme Court action (inaction, really), why it is so harmful to Americans, and what we can do to counter it.

I’ll lead with a NY Times piece by David Leonhardt in which he indicts The Anti-Voter Supreme Court (Oct. 10, h/t Jana Eaton) As an example, Leonhardt uses the North Dakota law disenfranchising Native Americans, a law that was upheld by the Supreme Court.

After Heidi Heitkamp, a North Dakota Democrat, narrowly won a Senate seat in 2012, Republicans changed a voter-identification law in the state. They stopped allowing any voter identification that lists a post-office box as an address.

There was a specific reason for the change, as Pema Levy of Mother Jones reports. Many Native Americans use a P.O. box as their address because the U.S. Postal Service does not deliver to their communities. And Native Americans had provided Heitkamp with crucial support in her win. The law was another Republican attempt to win elections by keeping Democratic-leaning groups from voting.

Last night, the Supreme Court declined to hear a challenge to the North Dakota law, effectively upholding it. Amy Howe of Scotusblog has a fuller explanation. “The risk of disenfranchisement is large,” Ruth Bader Ginsburg wrote in a dissent.

This case is yet another reminder that democracy protection needs to be the No. 1 item on the Democrats’ long-term political agenda. (Really, it should the top item on both parties’ agenda, but I realize that’s a naïve wish.) The next time Democrats control the federal government, they should pass a sweeping voter-rights bill, similar to the kind Paul Glastris has described in Washington Monthly.

History won’t look kindly on the political party that is trying to keep Americans — usually dark-skinned Americans — from voting.

Perhaps now you can see why I think the Supreme Court decision to let the ND voter-ID law to stand ranks right up there with lousy decisions like Citizens United v. FEC and Shelby County v. Holder.

Steve Benen (MSNBC/MaddowBlog) says more about Why North Dakota’s new voter-ID law is suddenly so important

When the Supreme Court fails to take up a case, it’s generally not front-page news, but this is a story that may carry significant consequences.

The Supreme Court on Tuesday allowed North Dakota to implement a voter ID law for the November midterm election, turning down a petition arguing that the measure would harm Native Americans who are less likely to live at standardized addresses or possess the identification cards required by the statute.

Native Americans are a reliably Democratic constituency, making Tuesday’s order unfortunate news for Sen. Heidi Heitkamp, a Democrat struggling to hold off a challenge from Republican Rep. Kevin Cramer in the deep red state.

In so sparsely populated a state, “it could be that a couple of hundred votes matter,” said Robert Wood, a political-science professor at the University of North Dakota.

Some background is in order. Six years ago, Heidi Heitkamp was widely expected to lose her Senate race in North Dakota. It’s generally a very red state – a Democratic presidential ticket hasn’t won in North Dakota in over four decades – and polls showed her trailing then-Rep. Rick Berg (R), the state’s sole U.S. House member.

But Heitkamp narrowly pulled off an upset, thanks in large part to support from Native American voters.

Soon after, the Republican-run state legislature decided it was time to overhaul the state’s incredibly easy system of voting. Under the newly imposed model, North Dakota would enforce a GOP-friendly voter-ID system, which would – you guessed it – make it harder for Native American voters to cast ballots.

Lower courts struck down the system as discriminatory, but just last month, the 8th Circuit, in a 2–1 ruling, rescued the Republican policy. The Supreme Court this week passed on taking up the case, which means the appeals court ruling will be binding and the state law – which wasn’t in place during North Dakota’s primary elections – will be enforced for Heitkamp’s tough re-election fight next month.

By practically every fair measure, the incumbent was already an underdog. This week’s court developments make matters just a little worse for the senator.

Slate’s Mark Joseph Stern did a nice job highlighting the practical implications:

The appeals court allowed the state to implement the part of the law that compels voters to provide an ID that includes his or her current residential street address. This provision is controversial because it seems to directly target Native Americans. The U.S. Postal Service doesn’t provide residential delivery in rural reservations, so most tribal members use a P.O. box, which is listed as their address on tribal IDs. To remedy this problem, the district court had ordered the state to accept IDs that list a current mailing address. But the 8th Circuit scrapped that compromise, permitting the state to reject IDs that include a mailing address but no street address – that is, a huge number of tribal IDs.

How many, exactly? The district court found that at least 4,998 otherwise eligible Native Americans do not have an ID with a current street address. They are not alone: About 65,000 non–Native American voters also lack the necessary ID. The law does allow voters to provide “supplemental documentation” to prove their identity, such as a utility bill or bank statement. But once again, Native Americans are disproportionately unlikely to have these materials, due in part to poverty and homelessness within their communities. Thus, at least 2,305 Native Americans may not be allowed to cast a ballot in the 2018 election.

For context, let’s not forget that Heitkamp won in 2012 by 2,936 votes.

In fairness, it’s important to emphasize that Native voters without a proper residential address can jump through some bureaucratic procedural hoops in order to try to cast a ballot. But to put it mildly, they’ll face an additional burden that most other voters won’t have to deal with.

What’s more, voters who participated in North Dakota’s recent primaries may not realize that a different system will be in place now. This week, Supreme Court Justices Ruth Bader Ginsburg and Elena Kagan warned of “grand-scale voter confusion” in North Dakota.

For Republicans eager to take Heidi Heitkamp’s Senate seat – and solidify the GOP’s Senate majority – it’s apparently a small price to pay.

Postscript: At the 8th Circuit, the two judges who restored the voter-ID law were appointed by George W. Bush. The dissenter was appointed by Barack Obama.

As Donald Trump and Senate Republicans dramatically shift the federal courts to the far-right, Americans should expect to see a whole lot more rulings like this one for the next several decades.

What to do

John Nichols (The Nation) confirms that “The Supreme Court Is Broken” and tells us Here’s How to Fix It. Progressives need to take back the Senate, and then consider constitutional reforms. We pretty much know about the broken part, so I am going to focus on Nichols’ take on how to fix it.

Shifting control of the Senate is vital, but that’s still an insufficient response; progressives must acknowledge the broader crisis and redouble their efforts to address it. Kavanaugh joins a right-wing activist majority on the Court that extends not from the will of the people but from our broken and dysfunctional politics. He is the fourth member of that majority to be nominated by a president who lost the popular vote. The genius of the American experiment has been its adaptability—much of it achieved by amending a Constitution that the founders knew would need to be changed. Yet the Electoral College lingers as the unreformed remnant of a period in which compromises between slaveholders and wealthy merchants were designed to thwart democracy. Advocates for constitutional amendments to get corporate money out of politics and to guarantee the right to vote—essential responses to the Court’s disastrous decisions in Citizens United v. FEC and Shelby County v. Holder—must add to their agenda the elimination of the Electoral College. They can also work for short-term fixes like the National Popular Vote Interstate Compact, in which states formally agree to cast their electoral votes for the winner of the popular ballot.

Progressives must also make structural reform of the courts a priority. A century ago, presidential contenders like Theodore Roosevelt and Robert La Follette proposed sweeping reforms of the federal judiciary, which was well understood as a reactionary threat. There were calls for legislation and constitutional amendments that would give Congress the power to defend laws that the Supreme Court sought to overturn, and to change the courts themselves with term limits for judges and provisions for the recall of errant jurists. President Franklin Roosevelt tried in the 1930s to expand the Supreme Court so that dinosaur justices appointed in the distant past could not block the New Deal. These calls for reform were dismissed as radical. But history often reminds us that the radicalism of one moment is the common sense of the next. That next moment has come. The awful corruptions of politics and process that put Brett Kavanaugh on the Supreme Court demand the immediate response of a new Senate and the longer-term response of a common-sense movement to reform the federal judiciary.

So, buckle up. The judicial road ahead is full of pot-holes and other political road hazards. We need to do a lot of road repair to get our democracy working.

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