Cagey Conservatives

As we turn the page to year 2008 and begin to focus on the elections in earnest, it's probably a good idea to ponder what we've learned of the conservative movement's electoral tactics over the past few cycles. Here's a story on the latest voting rights case [1] to come before the Supreme Court(h/t D-Day [2]):

The Supreme Court will open the new year with its most politically divisive case since Bush v. Gore decided the 2000 presidential election, and its decision could force a major reinterpretation of the rules of the 2008 contest.

The case presents what seems to be a straightforward and even unremarkable question: Does a state requirement that voters show a specific kind of photo identification before casting a ballot violate the Constitution?

The answer so far has depended greatly on whether you are a Democratic or Republican politician -- or even, some believe, judge.

"It is exceedingly difficult to maneuver in today's America without a photo ID (try flying, or even entering a tall building such as the courthouse in which we sit, without one)," Circuit Judge Richard A. Posner, a Ronald Reagan appointee, wrote in deciding that Indiana's strictest-in-the-nation law is not burdensome enough to violate constitutional protections.

His colleague on the U.S. Court of Appeals for the 7th Circuit, Bill Clinton appointee Terence T. Evans, was equally frank in dissent. "Let's not beat around the bush: The Indiana voter photo ID law is a not-too-thinly veiled attempt to discourage election-day turnout by certain folks believed to skew Democratic," Evans wrote.

For justices still hearing from the public about their role in the 2000 election -- "It's water over the deck; get over it," Justice Antonin Scalia impatiently told a questioner at a college forum this year -- the partisan implications of the issue are hard to miss.

The case has pitted Democrats against Republicans, conservative legal foundations against liberal ones, civil rights organizations against the Bush administration.

It sounds like the typical partisan judicial jockeying (which, since Bush vs Gore, is sadly no longer shocking) but it's part of something much more significant. Conservative vote suppression efforts go back a long way, but this 2004 study [3] (pdf) on GOP Ballot Security programs from The Center for Voting Rights reports that since the 1980's it's become fully professionalized:

The Republicans’ perceived problems arising from too heavy a reliance on volunteers began to be addressed with a different strategy in the mid-1980s. From Operation Eagle Eye onward, the major Republican ballot security programs had borne the imprimatur of the party high command, overseen by the RNC and implemented at the grassroots by local organizations and commercial political operatives. In the mid-1980s, the situation began to change. GOP ballot-security skulduggery in the city of Newark and environs had led to a consent decree in 1982 presided over by a federal judge in New Jersey, according to which the RNC promised to forego minority vote suppression. In 1985, several months before the RNC was hauled back before the same judge as a result of illegal purging efforts in a 1986 Louisiana senatorial campaign and agreed to submit all future ballot security programs it oversaw to the court for its inspection, a new organization was created—the Republican National Lawyers Association (RNLA).

A group of lawyers who had worked on the Reagan-Bush campaign in 1984 were behind its founding, and it was designed “to be a sort of Rotary Club for GOP stalwarts,” according to a contemporary article in Legal Times magazine. The RNC helped the association get off the ground with a $5,000 loan, although today the RNC claims no official connection with it. By 1987 the RNLA had active chapters in several states and the District of Columbia, and planned to hold its first annual convention early the following year. A lure for attendees, the planners hoped, would be continuing legal education credits and a possible appearance by Attorney General Edwin Meese III and President Reagan.20

The RNLA turned out to be much more than a Rotary Club for GOP lawyers, however; it became the predominant Republican organization coordinating ballot security. By its own account, in early 2004 it had grown to “a 1,900-member organization of lawyers and law students in all 50 states.” Its officers were experienced lawyers who knew their way around Washington as a result of having served in Republican administrations at the national and state levels and in major K Street firms. Michael Thielen, its current executive director, who earlier worked for the RNC, describes the organization as follows: Since 1985 the RNLA has nurtured and advanced lawyer involvement in public affairs generally and the Republican Party in particular. It is accurately described as a combination of a professional bar association, politically involved law firm and educational institute. . . . With members now in government, party general counsel positions, law firm management and on law school faculties, the RNLA has for many years been the principal national organization through which lawyers serve the Republican Party and its candidates.

If there was any evidence of massive voter fraud, perhaps such a thing could be arguably necessary. But there isn't. [4] In fact, after all the efforts of the Ashcroft and Gonzales Justice Departments --- even the firing of US Attorneys for failing to bring voter fraud cases against Democratic politicians --- they simply couldn't make a case that there is any kind of systemic fraud requiring that the state disenfranchise large numbers of people who might not have photo ID or other documentation. It just isn't happening. The conservatives have institutionalized electoral cheating.

But then we know that. The evidence has been clear for many years that the Republicans believe it is perfectly legitimate to win elections by manipulating the vote. This next election promises to bring more dicey voting requirements and suppression efforts than ever before.

For instance, Blue Tide Rising caught this little item [5]:

Earlier today Kris Kobach, chairman of the Kansas GOP, sent out a self-congratulatory litany of accomplishments. Among them was one particularly eye-catching item:

To date, the Kansas GOP has identified and caged more voters in the last 11 months than the previous two years!

"Caging" [6] is a bogus tactic designed to keep legitimate voters from being able to vote by removing them from the voter rolls if they fail to answer registered mail. Now they are even legalizing it [7] in the name of preventing non-existent voter fraud:

In Ohio, which swung the 2004 election to Bush, new Democratic Secretary of State Jennifer Brunner said in a phone interview that an election law passed last year and signed by former Republican Gov. Bob Taft effectively ``institutionalized'' vote caging.

The law requires that the state's 88 county election boards send non-forwardable, pre-election notices to all 7.8 million registered Ohio voters at least 60 days before the election. Undelivered letters are public record, she said, meaning that effectively, ``now the counties are paying for'' the data needed to compile challenge lists.

In addition, Brunner said, the law toughened voter ID requirements and ``took away rights of some voters to be heard about whether or not their registration was valid.''

[...]

A federal court injunction has barred the Republican National Committee for 25 years from engaging in racially targeted vote caging, but it doesn't extend to state parties.

Asked whether they might employ vote caging in 2008, Executive Director Jason Mauk of the Ohio Republican Party and spokeswoman Erin VanSickle of the Florida Republican Party said they couldn't discuss election strategy.

"Election strategy."

It brings the different partisan views toward democracy in stark relief. Certainly, Democrats have likely cheated in elections in the past, but the Republicans have turned it into a fetish. This shouldn't be surprising, when you think about it. While their voter suppression efforts do help them electorally, by holding down the vote of traditional democratic constituencies, on a broader scale it reflects a philosophical antipathy for the modern democratic concept of one person, one vote. They just don't believe in it, [8] which explains why the courts are so obviously divided along partisan lines:

Justice Antonin Scalia cheerfully pointed to it on 1 December 2000 during oral arguments in Bush v Palm Beach County Canvassing Board, the first of the two cases to be heard by the high tribunal. While interrogating Al Gore's attorney, Laurence Tribe, Scalia noted that "in fact, there is no right of suffrage under Article II." Ten days later, in Bush v Gore, the majority opinion drove the point home, emphasizing that "the individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the electoral college."

The next thing to watch for is increased hysteria about "illegal aliens" voting and strong voter suppression efforts in the southwestern swing states. It's the old stomping ground of the last chief justice William Rehnquist, who made his conservative bones intimidating Mexican American voters, as an Arizona poll watcher for Operation Eagle Eye [9] back in the 1960's. They've been at this for a long, long time. And from the looks of things, the newly conservative judiciary will be upholding their efforts more often than not.

Conservatives have built institutions dedicated to keeping people from voting or making sure their votes don't count, despite ample evidence that their "voter fraud" rationale is illegitimate. They clearly believe that if every eligible voter votes in this country they will lose elections. In light of that, this seems like an idea that progressives should pursue [10] relentlessly until they get it done.

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