Earl Ofari Hutchinson's take on the politics of the day
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In an exclusive interview on The Hutchinson Report Newsmaker Hour with host Earl Ofari Hutchinson on KTYM 1460 AM Los Angeles on November 18, Professor Herman Schwartz, Herman SCHWARTZ Professor Of Law at The American University in Washington, DC.
EOH: What are some of the tactics the GOP has used to suppress or dampen down the vote?
HS: Basically the idea is to try to prevent particular groups more likely to vote Democratic and in some way impede them from voting. That can include everything from denying the vote to people who have been in prison, it can include interfering with efforts to register. It can interfere with helping others with registration, and the one that has been talked about the most, requiring photo identification in a certain limited range or birth certificates at the polls. It can include a variety of other tactics that come down to intimidation and deception, such as sending notices to immigrant communities warning them if they don’t bring their naturalization papers they won’t be allowed to vote, or notifying them they can vote on Wednesday or by e-mail. By voting being required to take place on Tuesdays, a lot of working people who are not given time off cannot get to vote; not providing enough voting machines in certain areas. There is a wide array of tactics used.
EOH: What success would advocacy groups have in challenging the identification requirement laws?
HS: One can attack a statute on its face, which means no matter what you’re talking about, it’s going to produce an unconstitutional result. Another way is to attack a specific instance in which the statute is applied, once it goes into effect. The Supreme Court has become very reluctant to allow attacks of the first kind. In Indiana the minute or the day that the law went into effect it was attacked before it actually had an impact on an election. What the Court said was we are not going to strike this down before it’s actually applied. If you can show us it is applied in a particular way that violates laws against discrimination or interfere with the fundamental right to vote in an unjustified way, we will consider that case at that time. Secondly, the rules that have recently been passed in South Carolina, Texas, Alabama, Mississippi, and a few other places, allow for far fewer kinds of photo ID. For example in Indiana somebody who has a photo ID from the University of Indiana or other state entity, it’s good enough. In South Carolina, Texas, Alabama, Tennessee, Student ID’s from State Universities will not be acceptable. The reason is because young people tend to vote Democratic. They were a crucial part of President Obama’s election and Democratic victories in the House and Senate in 2008. If they can be excluded from voting, a significant chunk of the Democratic base would be affected, and Black Universities and Colleges would be particularly affected.
EOH: What are the Democrats doing to challenge these nefarious tactics of the GOP?
HS: I’m not aware of any grand strategy. I have read that the White House is quietly working to prepare to fight back and it is being run by a man called Bob Bauer who was White House Counsel and close to the President. I think through lawsuits, providing poll watchers to deal with the intimidation problem and providing assistance with people going to vote. The Voting Rights Act requires pre-clearance and that covers 9 states in full and parts of other states. I think to some extent there is an effort to bring this to public attention and challenge it in other ways. This is very hard to fight because much of this results from raw changes and in states that are not covered by the Voting Rights Act, it may be very difficult to challenge some of these things. It’s difficult to show this is intended to have the effect of disadvantaging groups. But some of this is so obviously intended to disadvantage certain groups that some of these law suits will have some promise.
EOH: Looking at Ohio, what do you think the chances of success are with the legal challenges and a referendum of overturning some of the re-mapping?
HS: Voters don’t like gerrymandering and in some 7 or 8 states, independent commissions have been established. Where you have a referendum, there is a chance, but not many states have referenda. The problem with political gerrymandering is the Supreme Court has made it almost impossible to challenge these, no matter how much they distort the vote in the state. Pennsylvania has voted democratic every time since 1988, but the legislature has gerrymandered the state to such a degree that the vote would be 12/6, Republican/Democrat, even though the state is fairly evenly split. Both parties do this when they get the chance and it’s very hard to challenge. Some state courts have blocked this kind of thing and it’s just a question whether the state court finds it is so distorted and unfair that they won’t let it go through. Those law suits aren’t often won, most gerrymanders wind up successful.