Kansas Secretary of State Kris Kobach, who has become a national figure by advising other states on how to implement anti-immigrant and voter suppression measures, has come up with a new creative way to make it harder for Kansans to vote: barring those who register to vote with a federal form from casting ballots in state elections.
Back in June, the Supreme Court struck down an Arizona elections law that required those registering to vote to show proof of citizenship beyond what is required by federal voter registration forms. In Kansas, Kobach has been struggling to deal with the implementation of a similar proof-of-citizenship law, which has left the voting status of at least 12,000 Kansans in limbo.
These voters, many of whom registered with the federal “motor voter” form at the DMV, were supposed to have their citizenship information automatically updated, a process that was delayed by a computer glitch. Kobach then suggested that these 12,000 voters be forced to cast provisional ballots – a suggestion that the state elections board rejected.
Now, the Lawrence Journal-World reports, Kobach has a new idea to deal with the problem that he created. The paper reports that Kobach is considering a plan to circumvent the Supreme Court’s decision in the Arizona case by creating two classes of voters. Under this plan, those who register with a federal form would be allowed to vote only in federal elections until they produced the state-required citizenship documents. Those who meet the state registration requirements would then be allowed to vote in state-level elections.
In Kansas, a new state law requires proof of citizenship to register to vote.
Kobach, a Republican who pushed for that law, said he is considering a proposed rule change that would allow those who use the federal form to register to vote to be allowed to vote in federal elections, such as presidential and congressional contests. The federal voter registration form does not require proof of citizenship documents, but includes a signed sworn statement that the individual is a U.S. citizen.
But those people would not be allowed to vote in state elections, such as contests for governor, other statewide offices and the Legislature.
Those who register to vote by providing proof of citizenship will be able to vote in both federal and state elections under the proposal.
Voting rights advocates in the state are understandably skeptical:
Dolores Furtado, president of the League of Women Voters of Kansas, said she would strongly oppose such a plan.
"It won't work," Furtado said. "When we can't handle registrations, the process of applications and processing registrations, how are we going to separate ballots?" she said. "This is creating a problem. Whenever we make things complex, people shun away."
When the elections board rejected his provisional ballots plan, Kobach was taken aback, saying that those who register to vote with the motor voter form aren’t likely to vote anyway, so disenfranchising 12,000 of them wasn’t “a major problem.” That seems to be his justification for the two classes of voter plan as well. According to the World-Journal, “Kobach said few Kansans register to vote using the federal form, so it shouldn't affect too many voters.”
WASHINGTON – In response to Attorney General Eric Holder’s announcement that the Justice Department will ask a federal court in Texas to require the state to obtain federal permission before implementing voting changes, People For the American Way President Michael Keegan released the following statement:
“In the wake of the Shelby County Supreme Court decision which gutted a key provision of the Voting Rights Act, today’s announcement is heartening for those of us who care about protecting access to the ballot box for all. The Roberts Court decision did not affect the Justice Department’s ability under the VRA to ask a court to require preclearance as necessary for specific jurisdictions, including those that had been automatically covered by the now-defunct congressional formula in Section 4. The safeguard of preclearance is still urgently needed, and Texas’ rush to advance a discriminatory voter ID law just hours after the Supreme Court decision came down is a case in point. We applaud the Justice Department’s new effort to protect Americans’ fundamental right to cast a ballot. We also continue to urge Congress to adopt a new preclearance formula to restore this important civil rights statute.”
A state elections board has prevented Kansas Secretary of State Kris Kobach from forcing the status of 12,000 voters into limbo, but he doesn’t get what the big deal is.
Kobach hit a speed bump this week in his effort to implement a new voter ID measure that requires voters to produce proof of citizenship when they register to vote. As Think Progress reported yesterday, a computer system delay has caused the voting status of 12,000 Kansans, most of whom registered while doing business at the DMV under the “motor voter” law, to go into limbo.
To “fix” this problem, Kobach suggested that the 12,000 voters effected by the computer glitch be forced to cast provisional ballots in the next election. If they wanted those ballots to count, they would have to later go to local election officials armed with proof of citizenship, such as a birth certificate.
The state elections board rejected Kobach’s solution. As Republican state senator Vick Schmidt said, “I don’t believe a large percentage of the population knows what casting a provisional ballot means. They believe it is going to count. Sadly for these 12,000-plus individuals, it will not count unless they take further action, and I think that is disingenuous at best.”
But Kobach told the Wichita Eagle that disenfranchising those 12,000 people wouldn’t be a “major problem” because they represent a “tiny percentage” of Kansas’ voters and probably don’t really want to vote anyway:
Kobach said his proposal would have given voters, particularly those who could participate in upcoming special elections this fall, an extra week to prove their citizenship. But he said those who remain in suspense probably only registered after being asked by clerks at the Department of Motor Vehicles and aren’t likely to be very active voters.
“I don’t think it’s a major problem,” he said. “This is a pretty tiny percentage of 1.8 million voters. It’s a small number of people. We’ll see as the coming elections unfold how many actually come out to vote.”
To put this in perspective, Kobach’s justification for pushing the voter ID law in the first place was what he alleged were 221 incidents of illegal voting in Kansas over the period of 13 years, only seven of which resulted in convictions.
So, Kobach thinks seven confirmed cases of voter fraud over 13 years requires upending the state’s entire voting system. But that overhaul resulting in 12,000 voters in one election forced to cast ballots that might not count affects “a small number of people” and is not a “major problem.”
It's been a week of mixed emotions for those of us who care about civil rights. There was the elation today when the Supreme Court overturned the so-called Defense of Marriage Act -- the discriminatory law that has hurt so many Americans in its nearly 17 years of existence -- and let marriage equality return to California. There was the anger when the Court twisted the law to make it harder for workers and consumers to take on big corporations. And there was the disbelief and outrage when the Court declared that a key part of the Voting Rights Act that was so important and had worked so well was now somehow no longer constitutional.
But throughout the week, I have been reminded of one thing: how grateful I am that Mitt Romney will not be picking the next Supreme Court justice.
It remains true that this Supreme Court is one of the most right-leaning in American history. The majority's head-in-the-sand decision on the Voting Rights Act -- declaring that the VRA isn't needed anymore because it's working so well -- was a stark reminder of why we need to elect presidents who will nominate Supreme Court justices who understand both the text and history of the Constitution and the way it affects real people's lives.
We were reminded of this again today when all the conservative justices except for Anthony Kennedy stood behind the clearly unconstitutional DOMA. Justice Antonin Scalia -- no stranger to anti-gay rhetoric -- wrote an apoplectic rant of a dissent denying the Court's clear role in preserving equal protection. If there had been one more far-right justice on the court, Scalia's dissent could have been the majority opinion.
Just think of how different this week would have been if Sonia Sotomayor and Elena Kagan were not on the court and if John McCain had picked two justices instead. We almost certainly wouldn't have a strong affirmation of LGBT equality. Efforts to strip people of color of their voting rights would likely have stood with fewer justices in dissent. And the rights of workers and consumers could be in even greater peril.
As the Republican party moves further and further to the right, it is trying to take the courts with it. This week, we saw what that means in practice. As we move forward to urge Congress to fix the Voting Rights Act and reinforce protections for workers and consumers, and work to make sure that marriage equality is recognized in all states, we must always remember the courts. Elections have real consequences. These Supreme Court decisions had less to do with evolving legal theory than with who appointed the justices. Whether historically good or disastrous, all these decisions were decided by just one vote. In 2016, let's not forget what happened this week.
While civil rights leaders are denouncing the 5-4 Supreme Court decision gutting the Voting Rights Act, the Family Research Council’s Tony Perkins is cheering. In an email alert sent at the end of the day on Tuesday, Perkins says, “With help from the U.S. Supreme Court, America may finally be turning a page on the racial politics that have haunted our last 50 years.” Oh, yes, giving a green light to the kind of blatantly discriminatory voter disenfranchisement efforts that we’ve seen in recent elections is certainly going to help America “turn the page” on racial politics.
Like other Religious Right leaders, Perkins loves to denounce “judicial activism” when judges uphold reproductive choice or legal equality for LGBT people. But he happily embraces this ruling in which a narrow Court majority rejected a huge bipartisan congressional vote that reauthorized the Voting Rights Act in 2006 on a matter in which the Constitution specifically and intentionally gives Congress wide discretion. Perkins complains that “Congress insisted on reauthorizing a Voting Rights Act that was rooted in one of the darkest chapters of U.S. history.” And he claims that “In recent days, the Voting Rights Act has been a tool for a liberal and politically-motivated DOJ to shape laws to its advantage.”
Perkins seems deeply concerned about “the red tape of the Voting Rights Act” that he said has been “unnecessarily handcuffing” states whose history of disenfranchisement meant that they had to have changes in voting procedures pre-approved by the Justice Department or by a three-judge District Court in the District of Columbia. In contrast, Perkins seems utterly unconcerned about more recent voter disenfranchisement campaigns waged by the GOP and its allies.
Perkins cites Chief Justice John Roberts’ disingenuous suggestion that the court was not acting in a way that would encourage discriminatory disenfranchisement. "Our decision in no way affects the permanent, nationwide ban on racial discrimination in voting," Roberts insisted. "Congress may draft another formula based on current conditions."
Is there anyone who thinks Roberts and Perkins actually want the federal-government-hating Tea Party Republicans who are calling the shots in the House of Representatives to support the creation of a new formula that would subject more states to federal oversight? Perkins makes his thoughts on that point abundantly clear with this comment about the Justice Department: “And in an administration as corrupt as President Obama's is proving to be, the less power it has over the states, the better!”
Rep. Paul Gosar, an Arizona Republican, told Mike Huckabee on Monday that the U.S. should consider a “national referendum” to make voter registration more difficult.
The two were discussing the Supreme Court ruling that invalidated an Arizona law mandating that people registering by mail to vote in the state using a federal voter registration form produce additional documentation to prove their citizenship. The federal form already requires voters to certify under oath that they are citizens. Civil Rights groups worried that the Arizona requirement would disenfranchise low-income voters and jeopardize voter registration drives.
Gosar told Huckabee that the ruling, which found that Arizona’s requirement was preempted by federal law, was “very disappointing,” adding, “We really have to solve this process from the federal level, with regards to either legislation or a national referendum.” It is unclear what he meant by a “national referendum.”
Gosar also lamented that the Department of Justice under Attorney General Eric Holder has “upheld or disdained certain groups’ privileges over others,” echoing Justice Antonin Scalia’s dismissal of the Voting Rights Act as a “racial entitlement.” (Scalia, however, wrote the opinion striking down the Arizona law.)
Huckabee: This morning, the Supreme Court handed down a very significant decision striking down your state’s law regarding voter documentation. Did the ruling surprise you? And what kind of reaction are you hearing from your home state?
Gosar: Well, I mean, they’re disappointed. They cited the supremecy clause, the federal government over the states, and they bypassed what would be legal documentation. I think that’s what’s eluding us is that what, you know, what is being dictated to the states in regard to voter safety. But then you have a federal government that fails to respond, particularly when you look at the Department of Justice under Eric Holder and how they have upheld or disdained certain groups’ privileges over others. I think it’s very disappointing, and it tells me that we really have to solve this process from the federal level, with regards to either legislation or a national referendum.
The Supreme Court issued 7-2 ruling in favor of voting rights today, finding that a restrictive Arizona law requiring that voters show proof of citizenship when registering by mail is preempted by federal law. The court upheld Arizonans’ right to register to vote by mail using a federal form created by the 1993 “Motor Voter” law, which allows voters to certify under oath that they are citizens. Arizonans will not have to submit information that the federal form does not require.
PFAW Foundation joined in an amicus brief in the case, Arizona v. Inter Tribal Council of Arizona, on behalf of its Young People For program.
The Arizona law, which would have required voters to present one of a narrow set of documents proving citizenship in order to register to vote, would have impeded the voting rights of countless Arizonans. As Demos put it:
Many eligible citizens do not possess these narrow forms of documentation required by the law and, of those who do, many do not carry them while conducting their daily affairs. Community-based registration efforts overwhelmingly rely on approaching individuals who did not plan in advance to register at that time or location and who are thus unlikely to be carrying a birth certificate, passport, or other documentation.
Even when a potential registrant does happen to be carrying one of the required documents, logistical hurdles—ranging from an inability to copy documents on the spot to an unwillingness to hand over sensitive identification documents to registration drive volunteers—greatly hinder the ability of community-based organizations to register people in Arizona.
The Supreme Court has yet to issue a decision in the other major voting rights case on its docket this term, the constitutionality of Section 5 of the Voting Rights Act.
The pushback against Pennsylvania Republicans’ electoral vote-rigging bill continues to grow, as more and more public officials and average voters call on Governor Corbett to dump the hyper-partisan scheme plan.
On Monday, People For the American Way held a press conference in Philadelphia with state Senator Anthony Williams and a representative from the office of U.S. Rep. Robert Brady, who said that he fears this legislation represents “more of the same” partisan tactics that we saw with last year’s voter ID bill.
Yesterday in the state capitol of Harrisburg, state Auditor Eugene DePasquale and state Treasurer Rob McCord added to the calls for Corbett to put aside partisan politics and “stand up and say, ‘This isn’t right.’” McCord warned that the bill would mean millions in lost economic activity, and called it a “shame.” DePasquale said that the bill would greatly reduce the influence of Pennsylvania in national elections by limiting the number of electoral votes in play to 3 or 4, similar to small states like Wyoming. “When was the last time you saw a major policy announcement from a president in Wyoming?,” he asked.
With the chorus of voices against the bill growing ever louder, from both Democrats and Republicans, it’s becoming harder and harder for Corbett to maintain his tacit support for this scheme. If Pennsylvanians keep speaking out against this bill, Corbett won’t be able to act like he can’t hear us for much longer.
Back in April, two Alaska House committees approved a bill that would require voters to show a photo ID at the polls – a particularly damaging measure in a state where many rural communities don’t even require photos on drivers’ licenses. Now, the Anchorage Daily News is reporting that there is a familiar face behind the measure. Kansas Secretary of State Kris Kobach, the driving force behind voter suppression and anti-immigrant measures around the country, reportedly coordinated with Lt. Gov. Mead Treadwell to push the bill in what looks like an effort to damage Democratic Sen. Mark Begich in his 2014 reelection bid. (Treadwell denies that he worked with Kobach on the bill, which he says he opposes.)
Alaska Natives say a photo ID rule would be a roadblock to voting in the Bush. A decline in turnout there, with its traditionally heavy Democratic vote, could affect the 2014 reelection hopes of U.S. Sen. Mark Begich, a Democrat running in a Republican-leaning state. One of his potential rivals is Alaska's top election official, Republican Lt. Gov. Mead Treadwell.
Treadwell says he doesn't support the voter ID bill, but Kobach says Treadwell was instrumental in getting him involved in promoting the Alaska legislation.
In an April statement to reporters that didn't mention Kobach or Kansas, Treadwell touted the cross-checking as having found 14 people suspected of "actually voting in both Alaska and another state" in 2012. Treadwell threatened to prosecute the voters if the allegations were confirmed.
Alaska elections director Gail Fenumiai recently said 12 of the 14 voters cited in Treadwell's April statement were wrongly identified as duplicate voters and actually voted only in Alaska.
Kobach told the Daily News it was he who suggested to Treadwell that Alaska get involved in the Kansas project. "I personally talked to Mead Treadwell, your lieutenant governor, and encouraged him to join, and he did so," Kobach said.
And his testimony on the photo ID bill, Kobach said, was the result of a conversation with Treadwell.
"I spoke to Mead about it at one of our national conferences -- he mentioned that you guys were considering a photo ID law," Kobach said. "I said I'd be happy to share some of the experiences we've had in Kansas."
Treadwell, who said he doesn't support the Alaska bill because of the difficulty for Bush residents to get photo identification, said he didn't recall talking to Kobach about it.
As the Daily News explains, a photo ID bill would be especially damaging to Alaska Natives living in rural communities where DMVs are hard to access and where many towns don’t even require photographs on drivers’ licenses:
Photo ID measures are controversial across the country. Advocates say they help prevent fraud. Opponents say they make it more difficult for particular groups of people to vote: the elderly, students and the poor who don't own cars. In Alaska, the situation is compounded by the difficulty of getting to a Division of Motor Vehicles office in a regional hub like Nome or Bethel from a small village. Alaska doesn't even require a photograph on a driver's license in dozens of Bush communities.
Democratic activists say photo ID bills have the effect of disenfranchising more Democratic voters than Republicans. In his annual address to the Alaska Legislature this year, Begich criticized the bill as making it more difficult for Alaska Natives and Hispanics -- two traditional Democratic groups -- to vote.
The sponsor of Alaska’s bill, who has acknowledged that he drafted the measure using materials from the corporate-funded conservative group ALEC, had odd words of consolation for those concerned about the suppressive impact of the bill: at least it wouldn’t be as bad as Iraq!
Rep. Bob Lynn, an Anchorage Republican who is prime sponsor of the voter ID bill, said he wasn't trying to disenfranchise anyone. He dismissed opponents as complainers who should be happy they don't face the kind of obstacles voters do in places like Iraq.
"Terrorists have threatened to kill anyone who voted, but they voted anyway, and then these voters put ink in their finger to prove they had voted -- evidence that could have gotten them killed. Now that's a hassle, to say the least. Needing a photo ID to vote in Alaska wouldn't even come close to that," Lynn said when his State Affairs Committee first heard the bill in February.
TO: Reporters and Editors
FROM: Jamie Raskin, Senior Fellow, People for the American Way Foundation
DATE: May 24, 2013
RE: Blockbuster Decisions Coming Soon from the Supreme Court . . .Will Conservative Justices Twist the Constitution to Subvert Equal Protection?
The Roberts Court will soon release major decisions shaping the future of voting rights protection, affirmative action in university admissions, and the rights of marriage for gay and lesbian Americans. In each case, the promotion of equal rights under law in our society is opposed by a conservative agenda that seeks to enshrine inequality in the name of “federalism,” “color-blindness,” or “social tradition.” What is at stake in these cases is whether America continues its journey towards strong and inclusive multi-racial democracy or accepts conservative arguments that undermine constitutional and social progress.
Congressional Protection of Voting Rights versus “Federalism Costs”:
The Voting Rights Act on the Chopping Block in Shelby County v. Holder
In Shelby County v. Holder, conservatives seek to dismantle the essential machinery of modern voting rights protection, which is the pre-clearance procedure for voting changes in covered jurisdictions. This procedure is contained in Section 5 of the Voting Rights Act of 1965, the monumental statutory achievement of Congress in the last century. Chief Justice Roberts, in a near-miss decision on the same subject in 2009, has already expressed the sentiment of his conservative colleagues that the provision now “raises serious constitutional questions.” At oral argument in Shelby County, Justice Scalia offered his view that the Voting Rights Act has become nothing more than a “racial entitlement.” Despite broad bipartisan support in Congress for the Voting rights Act, including Section 5, the conservative legal movement is mobilized for its destruction.
Section 5 obligates covered states and jurisdictions to “pre-clear” changes affecting voting with the Department of Justice or the federal district courts in Washington. This procedure affects states and counties that were the worst offenders against voting rights and has been in place for nearly a half-century. Section 2 of the Fifteenth Amendment clearly gives Congress the “power to enforce” voting rights “by appropriate legislation.” The Court has four times—in South Carolina v. Katzenbach (1966), Georgia v. U.S. (1973), City of Rome v. U.S. (1980), and Lopez v. Monterey County (1999)—rejected invitations by states to declare Section 5 as outside of Congress’ powers under the 14th and 15th Amendments. Thus, Alabama, Georgia, Louisiana, Arizona, Mississippi, South Carolina, Texas, Virginia and later Alaska (along with certain jurisdictions in California, Florida, Michigan, New Hampshire, New York, North Carolina and South Dakota) have had to prove that proposed changes in election laws do not disadvantage minority voters. While the Justice Departments and the courts routinely approve more than 99 percent of submitted plans, the VRA remains a critical stop against laws meant to disenfranchise racial minorities. Hundreds of state plans and thousands of proposed changes have been rejected under the law, preventing a backslide in the project of building a strong interracial democracy.
But the case against Section 5 today turns on neither constitutional precedent nor text nor the facts of political life on the ground, but rather on the talk-show fallacy that a nation which twice elects an African-American president simply cannot contain any states or counties where minority voters face actual barriers to participation. Backing up this non-sequitur intuition are constitutional myths: that Congress has to treat all states and counties the same and cannot distinguish among them based on their records of committing voting rights violations. and that the pre-clearance mechanism in the Voting Rights Act and its “coverage formula” impose far too high “federalism costs” on covered areas (i.e., it allegedly takes too much power from the states). All of these taking points are supposed to justify the Court’s substituting its judgment for that of Congress and to find that Section 5 is no longer a “congruent” or “proportional” remedy, under either the Fourteenth Amendment or the Fifteenth Amendment, for threats to voting rights. But the lower courts in this case reviewed more than 15,000 pages of Congressional findings and testimony and were convinced of the continuing need for preclearance to deal with the disingenuous disenfranchising and diluting schemes in the covered areas, including voter photo ID laws, tightening restrictions on registration and at the polls, and racist gerrymanders.
The arguments against Section 5 appeal to the racial fatigue of Supreme Court arch-conservatives, who are willing to give state legislatures, a majority of which are in conservative Republican hands today, the freedom to restrict voting rights. The pre-clearance procedures of Section 5 are the major obstacle to this goal because they mean that all of the traditional hijinks of Jim Crow politics must be submitted in advance to federal judges or DOJ civil rights lawyers for approval. Rather than placing the burden on African-Americans and other minority voters to find lawyers and make the case against repressive practices after they go into effect, the covered jurisdictions have to affirmatively show that their innovations are not discriminatory or “retrogressive” before the damage is done. As the Supreme Court put it approvingly in South Carolina v. Katzenbach, “After enduring nearly a century of systematic resistance to the Fifteenth Amendment,” Congress chose “to shift the advantage of time and inertia from the perpetrators of the evil to its victims.”
The word “federalism” does not appear in the Constitution, nor does the opaque and mysterious phrase “federalism costs,” which has become the key mantra for the conservatives. At least four Justices—and we’ll see about Justice Anthony Kennedy—appear poised to use these malleable concepts to override the clear enforcement powers that the Constitution explicitly assigns to Congress through Section 5 of the Fourteenth Amendment and Section 2 of the Fifteenth Amendment. Thus, the Supreme Court is on the brink of usurping Congressional power plainly granted by the Constitution by thwarting Congressional decisions to enforce the equal rights of Americans to vote and participate in the political process.
Racial Integration, Inclusion and Diversity versus “Color-Blindness”:
Affirmative Action Walks the Plank in Fisher v. University of Texas at Austin
The ceaseless attack on affirmative action returns again this Term with Fisher v. University of Texas at Austin, a sweeping challenge to a modest use of race and ethnicity in UT’s admissions process that was adopted to correct for continuing weakness in the numbers of minority students on campus. The twist here is that most UT students are admitted through a policy guaranteeing admission to students who graduate in the top 10 percent of their public high school classes. About one-fifth of the class is admitted outside of that race-neutral policy, and affirmative action plays a role in this small part of the process.
Most people thought that the lawfulness of such a policy was settled for at least 25 years in 2003, when the Court decided Grutter v. Bollinger and Gratz v. Bollinger, cases testing the constitutionality of affirmative action programs as practiced, respectively, at the University of Michigan Law School and the University of Michigan’s undergraduate program. The majority upheld the Law School’s “holistic” use of race and ethnicity in the process to promote diversity in the educational experience because all consideration of applicants remained individualized and there were no quotas and no numerical targets used in the selection process. (The University of Texas modeled its law school’s affirmative action program after that upheld in Grutter in 2003.) Meanwhile, the majority invalidated the undergraduate plan because racial or ethnic minority status was quantified and treated as adding bonus points in a rigid numerical weighing system, a process that the Court said leaned towards being a quota system. While rejecting the college plan as a blunt instrument, Justice O’Connor found that the kind of diffuse and holistic use of minority status embodied in the law school program was permissible. She thought such affirmative action would be warranted for a period of what she predicted to be another quarter-century. Given that most public universities remained segregated through the 1950s and 1960s, this seemed like a sensible time-line.
The Grutter decision reaffirmed and updated Regents of the University of California v. Bakke, the 1978 high Court decision which struck down numerical quotas for minority admission but approved the generalized use of race in the admissions process to promote the compelling interest in having a diverse student body. Grutter was met with relief and enthusiasm throughout American academia, in the business sector, by the armed services, and across American society.
Now, once again, conservatives hope to turn the Constitution against the project of equal rights and equal opportunities. The key move is to claim that Equal Protection mandates absolute “color-blindness” and therefore forecloses any conscious efforts to build diversity and inclusion into the educational experience of students. But the history of the Equal Protection Clause demonstrates that its Framers clearly contemplated that government would seek to take account of the racial implications of official discrimination in the past to fashion consciously inclusionary policies going forward.
Equal Protection of the Rights of all Citizens in Marriage versus “Social Tradition”:
United States v. Windsor and Hollingsworth v. Perry
Two significant cases raise the important issue of whether gay and lesbian Americans enjoy an equal right to marry and to enjoy all the rights of marriage. Here, straightforward understandings of Equal Protection clash with an extra-constitutional commitment to the “social tradition” of discrimination against gay people.
One case, United States v. Windsor, deals with the constitutionality of Section 3 of “DOMA,” the 1996 federal Defense of Marriage Act, which provides that the word “marriage” in any federal law or regulation—including the Social Security Act, the Internal Revenue code, immigration law, and more than 1,000 others—shall apply only to the “legal union of one man and one woman as husband and wife.” This sweeping discrimination means that, although hundreds of thousands of gay and lesbian Americans have won and exercised the right to marry in twelve states and the District of Columbia, the rights, benefits, and duties that they should receive as married people under federal law are categorically withheld from them. Under federal law, married couples who are gay are treated as legal strangers to one another and as unworthy of the rights enjoyed by other citizens.
This discrimination has dramatic consequences. The respondent in Windsor, Edith Windsor, was forced to pay $363,000 in federal taxes on the estate she inherited after her wife (and life partner of 40 years) died, since DOMA prevents same-sex spouses from inheriting marital property on a tax-free basis, a benefit that heterosexual couples take for granted. Windsor won a clean victory in the United States Court of Appeals for the Second Circuit, which found that discrimination against gay people triggers Equal Protection “intermediate scrutiny” and that Congress could not even demonstrate a valid, much less an important, interest for defining marriage at the federal level so as to exclude from its benefits thousands of married couples in the states.
The other case taken up by the Supreme Court is Hollingsworth v. Perry, which tests the constitutionality of California’s infamous Proposition 8 ballot measure, which revoked the marriage rights that gays and lesbians had enjoyed in the state under a landmark California Supreme Court decision. Proposition 8 was voided in a broad pro-marriage decision handed down by California United States District Court Judge Vaughn Walker, a decision that was reaffirmed on narrower grounds by the United States Court of Appeals for the Ninth Circuit, which essentially found that California had no rational basis for taking away from its gay citizens the marriage rights that it had previously granted.
Both cases involve government refusing to recognize the equal rights of gay people, either in married couples or couples who want to get married. With DOMA, Congress denied the same equal rights and benefits to gay married people as it offers to straight married people, and with Proposition 8, California actually revoked the marriage rights of gay people and prohibited the legislature from ever restoring those rights. The Proposition 8 proponents even sought to use the measure to annul gays’ and lesbians’ existing marriages without their consent. The discrimination in both cases is plain to see, all of it justified on the grounds of “traditional marriage” and “social tradition.”
The right to get married as a basic civil right has frequently been addressed by the Supreme Court, but the Court has never addressed whether that right extends to gay and lesbian Americans, and the Court could successfully dodge the underlying issue here.
One good possibility is that the Court will strike down DOMA as a naked Equal Protection violation, saying that states need not necessarily extend marriage rights to gay and lesbian residents but that, if states do extend equal marriage rights, the federal government may not discriminate against people who avail themselves of those rights. Pro-marriage forces expecting this result place a high burden of hope on Justice Anthony Kennedy, who has written excellent majority opinions upholding the equal rights of gay and lesbian Americans in Romer v. Evans (1996) and Lawrence v. Texas (2003). But Kennedy may instead decide purely on federalism grounds, potentially providing a fifth vote to strike down DOMA but preventing any pro-equality legal rationale from having a majority that would bind lower courts in the future.
In the California Proposition 8 case, the Court could say that states that give all of the state-law rights of marriage to gay and lesbian citizens cannot withhold from them the title of marriage; this would affect eight states in a similar situation as California. Another possibility, more remote, is that Justice Kennedy would agree to join the moderate-liberal faction in simply declaring that gay people have equal rights to marry, which would mean invalidating discriminatory laws still on the books in the vast majority of states. Conversely, the Court might also say that there is no obligation for California to protect the right of gay and lesbian citizens to marry at all. Or, finally, it could dismiss the whole case on either standing grounds—the Attorney general of California refused to defend Proposition 8, leaving that task to anti-marriage advocates who put the initiative on the ballot—or on the grounds that cert was improvidently granted. There are still many ways to escape the basic issue of discrimination, even though all of the momentum in the states is towards marriage equality and the rationales for discrimination have been collapsing everywhere like a giant house of cards.
Equal Protection versus the Politics of Inequality
As we await the Supreme Court’s decisions in these cases, Americans should not miss the big picture of this constitutional moment. In a society that disenfranchised African-Americans and other minorities for centuries and discriminated openly against racial minorities and the gay and lesbian population, we are living through giant progressive changes in political democracy and voting rights, educational opportunity, and marriage rights for all. Yet, in politics, as in physics, every action creates an equal and opposite reaction, and a huge ideological undertow has formed on today’s Supreme Court, which has replaced the values of the long-ago Warren Court with commitments to corporate power over government and government power over people. What is at stake in these cases is whether the Supreme Court will interpret the Constitution to be the instrument of equal protection for all or will twist it to make it the guarantor of inequality and injustice.
* * * * * * *
Jamie Raskin, a Senior Fellow at People for the American Way Foundation, is a professor of constitutional law at American University’s Washington College of Law and a State Senator in Maryland.
WASHINGTON – People For the American Way Foundation’s African American Ministers Leadership Council (AAMLC) applauded yesterday’s Census report confirming that African Americans turned out to vote at a higher rate than any other ethnic group for the first time last year.
Members of AAMLC, a nationwide network of African American clergy, worked through the nonpartisan “I Am a VESSEL and I Vote” program to train over 7,000 clergy and faith leaders in get-out-the-vote skills, including registering new voters and bringing voters to the polls.
“This milestone shows the power of strong, strategic organizing in the African American community,” said Minister Leslie Watson Malachi, director of AAMLC. “It also shows what happens when politicians threaten the rights of current and future African American voters. Across the country, we witnessed a variety of attempts by local, state and federal officials to rig elections to make it harder for Black Americans to vote. In response, starting a year before election day, we raised awareness of suppression efforts from the statehouses to the courthouses, organized with other faith and civil rights communities, and turned out at the polls to proclaim victory for our hard-won rights.”
“This should be a lesson to elected officials who think they can keep African Americans from exercising our civic duty,” added Malachi. “We take the right to vote seriously, we know our power in this democracy, and we intend to use it. Every election counts and every African American votewill be counted. The movementto end oppression at the polls is here to stay.”
People For the American Way Foundation’s African American Ministers Leadership Council represents an ecumenical alliance of 1,500 African-American clergy working toward equality, justice and opportunity for all.
We already knew from our canvassing these past few weeks that the Pennsylvania GOP’s electoral vote-rigging plan is unpopular with Pennsylvania voters. Now, thanks to a People For the American Way video, we know that this opposition isn’t just coming from the voters -- it’s also coming from crucial Republican state senators. At a town hall meeting in New Hope, state Sen. Charles McIlhinney told constituents that he thought the electoral college scheme, sponsored by Sen. Dominic Pileggi, was “poorly thought out” and that he wouldn’t support the bill. Senator McIlhinney pointed out that it would “set Pennsylvania back” by diminishing its significance in the electoral college, putting its influence on a level with smaller states.
This should be a wake-up call for Pennsylvania governor Tom Corbett. He’s already facing a tough re-election battle, and it’s clear that this electoral college scheme is not a winner for him -- the comments from Sen. McIlhinney are just further evidence of this. But clearly, it seems like Gov. Corbett thinks staying silent on the issue will mean that no one will notice. Unfortunately for him, it doesn’t work like that: we know his silence reveals his tacit support for the plan, and the longer he leaves it, the clearer it becomes. Governor Corbett has been hiding from his own party’s policies for a while now, but with these comments from Sen. McIlhinney -- a prominent member of the committee that would be the first to consider the bill -- the reality’s catching up with him. It’s time to either come out and support the bill or admit, like Sen. McIlhinney did, that his party got it wrong on this one.
Watch our video of the Senator’s comments here:
Kansas Secretary of State Kris Kobach, the driving force behind draconian anti-immigrant laws in Arizona and Alabama and a rising national figure on the Right, is close to a major victory on one of his other pet projects – gaining attention for the mythical problem of “election fraud.”
Kansas’ legislature is poised to grant Kobach’s office the power to prosecute election fraud cases that it identifies, a responsibility previously reserved for county and federal prosecutors. Kobach claims that prosecutors and the state attorney general’s office are neglecting these cases because of “a very full plate.”
But a look at even a few of the cases Kobach claims that prosecutors are neglecting tells a very different story. In February, Kobach told The Topeka Capital-Journal that he had referred eleven “slam dunk” cases to prosecutors, none of which had ended in convictions. But one of the prosecutors responsible for following up on those cases found that most were isolated incidents involving people who were just confused about the voting laws:
Johnson County District Attorney Stephen Howe took exception to some of Kobach's characterizations in his testimony on behalf of the Kansas County and District Attorneys Association. Howe said Kobach's bird’s-eye view of widespread voter fraud crumbles when investigated by those on the ground.
For instance, Howe said one double-voter his office investigated was an elderly man showing "the early stages of dementia." Howe's office notified the man's family rather than prosecute him.
Another alleged double voter was a developmentally disabled man.
“Are we supposed to prosecute that case?" Howe asked. "I chose not to.”
This fits with the pattern. In 2011, Kobach claimed that there had been 221 incidents of voter fraud in Kansas between 1997 and 2010. Yet just seven of these resulted in convictions.
Kobach now claims that he has identified at least 30 cases of illegal double voting in the 2012 election by finding people with the same name and birthdate who voted in two separate states. Such matching tactics have in the past have resulted not in legitimate voter fraud convictions, but in embarrassing errors and mass wrongful disenfranchisement.
Kobach’s issue with the state’s prosecutors seems to be not that they haven’t properly investigated voter fraud – but that they have failed to promote the conspiracy theory about widespread voter fraud that, when it becomes popular, benefits people like Kris Kobach and the policies they pursue.
NEW HOPE, Pa. – At a town hall meeting here Wednesday, Sen. Chuck McIlhinney, a Republican member of Pennsylvania’s Senate State Government Committee, spoke out against fellow Republican Sen. Dominic Pileggi’s scheme to change the way Pennsylvania apportions its electoral votes. McIlhinney said Pileggi’s bill was “poorly thought out” and “makes no sense to me whatsoever.” He added, “I won’t support it.”
McIlhinney is a member of the Senate State Government Committee, which would be the first to review Pileggi’s bill.
Rep. Allyson Schwartz and former congressman Joe Sestak have both denounced the plan. Gov. Tom Corbett has yet to state a position on the bill and whether he would veto it if it passed the legislature.
“Governor Corbett has not been forthright with the public on whether he favors legislation rigging future presidential elections in favor of one party over another and costing the state millions in economic activity. Despite his reluctance to clearly articulate a position on disenfranchising millions of Pennsylvanians, it is clear that his tacit approval will not stand well with voters or even with some members of his own party,” said Randy Borntrager, Political Director of People For the American Way.
“It’s time for the governor to step up and tell Pennsylvanians whether he sides with the best interests of the voters or with the interests of the Republican Party leadership.”
Last month, People For the American Way delivered over 100,000 petitions urging Corbett to reject Pileggi’s plan.
A transcript and video of McIlhinney’s remarks are below.
Question: I just had a question about a bill that Senator Pileggi had, that we have been hearing a lot in the press about, that changes the electoral college votes. What is your stance on that? What is your position on that and why?
Senator McIlhinney: The electoral college….What they are trying to say is that you have a proportionate amount of votes you need…or we have 20 electoral college votes and they should be based upon a proportionate of the number of people who voted in Pennsylvania.
Now, under that system, I could never see a Presidential candidate ever getting more than 11 to 9, no matter who it is. Because I am never going to see a candidate win 75% of the vote in Pennsylvania. So you could never even get more than 11 let alone 20. Which makes no sense to me whatsoever.
What you’re saying is you’ll have two….It will force us into a state that will only have two electoral college votes depending on which way you go with it. So, I won’t support it. I don’t think it’s gonna come up.
But that’s the logic is to say that every vote should count. So, even if your candidate lost, you’re still gaining him some electoral college votes in that electoral college….but it really was poorly thought out, if I can say that.
I respect Senator Pileggi a lot but I wouldn’t support it. And it really would set Pennsylvania back to a state like a small state like Vermont or Ohio…well not Ohio.