On the Court

During last week’s look at the Best of the Spherical Model (Part I, Part II, and Part III), I left out one piece that is actually among the most re-read: Supreme Court Voting Patterns. My son Political Sphere had collected data to look at the Supreme Court’s voting record up to the point just before the Obamacare vote. It was topical, which is why I didn’t include it last week. But enough has come up about the Court this week that I’m thinking it would be good to update the voting record chart in the near future.

In the meantime, a couple of recent rulings are worth looking at.

Monday, June 16, the Court ruled on an Arizona Voter ID case, about whether a state can require verification of citizenship for voter registration when federal law does not require such verification. The short answer you’re hearing in the news is that the Court favored the federal government’s view, and limiting states. But the more complicated, actual ruling is that on one of five issues (the least relevant), the Court sided with the federal government, but on the other four issues, the Court verified states’ rights—which is a good thing. J.Christian Adams, former DOJ attorney and author of Injustice, has been working with voter integrity issues for a long time. His assessment is an excellent summary.  The Heritage Foundation also covers the ruling.

Back on June 3^rd, the Court ruled on the collection of DNA evidence. Justice Scalia dissented from the majority—along with three of the liberals on the Court. Nevertheless, I think as usual Scalia is right.

Here’s the scenario from the case: a man was taken into custody for assault in Maryland in 2009.  DNA taken during his arrest for the assault became evidence in new charges against him from a 2003 rape, because his DNA matched a rape kit kept from that earlier case. An evildoer is caught; that should be a good thing.

Here’s the problem: the Court ruled that DNA could be taken at the time of arrest, because it is essentially an identifier, like fingerprints. What they could foresee was that, if a prisoner needed to be moved, the DNA would prove that the correct person was being transported. But that isn’t actually how ID-ing a prisoner would work. His fingerprints would indeed be a quick and accurate identifier. Taking a fresh fingerprint and using a fingerprint database would take no more than half an hour. But taking a DNA sample for that purpose would never be done. The sample would need to go to a lab, where it could take, at best, hours (and more likely weeks) to compare to the existing record of that prisoner’s DNA. In the case in question, the DNA wasn’t looked at until four months after arraignment.

And even then it wouldn’t be infallible. DNA results show whether there’s a high likelihood that two DNA samples match. It’s a matter of probabilities, not certainty. We can’t say no two humans have the same DNA. Identical twins occur in about 11 births per thousand, and they share identical genetics. But even identical twins have different fingerprints.

So, for greater expense, longer time, and less accuracy, why use DNA instead of fingerprinting?

The Court seemed to agree that collecting the DNA for the purpose of using it as a fishing expedition to tie the suspect to other crimes was not right. The DNA, when collected for use in the case where the person is a suspect is a reasonable gathering of evidence. But what if the suspect is exonerated of that crime? Should his DNA be kept, and used to compare to other crimes? Is he required to provide evidence against himself for unknown, unsuspected crimes, on the off chance that something might be found someday? The Court halfway said that couldn’t be the reason. But, if you think of the DNA not as evidence, but as just an ID, like a fingerprint, then it was OK. (And then, if it happened to be used in some other way, that wasn’t the Court’s concern.)

If one were to assume a corrupt government (just hypothetically speaking), it would be difficult and improbable for some official to place a political enemy’s fingerprints at a crime scene in order to frame the person. But placing DNA at the scene could be in the form of a hair, a fingernail, a bit of saliva left on a drinking glass. The person kind of has to be there to leave his fingerprints, but he doesn’t necessarily have to be there to have his DNA placed there.

Even without a corrupt government, we do have a fourth amendment protection that is at issue. As Scalia summed it up: "Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail." Yes, those amendments—they keep coming up.

Meanwhile, in a slightly related issue, Senator Mike Lee (R-UT) has just come out with a book, Why JohnRoberts Was Wrong on Obamacare.  He lays out the case that the Chief Justice changed his opinion midstream concerning Obamacare, coming up with the tortured ruling that it was OK if it was a tax, which it was declared not to be by federal government lawyers on days it was convenient to say that, but declared as a tax—by the same lawyers on other days when that was convenient.

available here

I haven’t read the book yet. From what I’ve seen covered, I think it implies there may have been pressure on Roberts to change his opinion. Most of us who were looking on at the time thought that was the case. There was quite a lot of evidence, just in the way the dissent was written, as if it had been the majority opinion, that he had changed his mind. So the question we all had was why. I think we’d all still like to know: was Justice Roberts coerced? Were there threats to his reputation or his person or his family? Was he more subject than we thought to political pressure or the desire to be liked in Washington? We’d like to know, because his vulnerability to pressure, for whatever reason, coupled with the power to determine binding law, has consequences for all of us.

Even when our justices are wrong, we want their opinions to come from their best understanding of the Constitution, not some tortured effort to reach a pre-desired outcome.

Voter Suppression, Really?

I’ve written here several times about poll watching in an effort toward free and fair elections, including just last week, plus here, here, here, here, and here. But today I’m writing once again, this time in response to an inflammatory piece in last Friday’s Houston Chronicle: “Partisan tactic could suppress voting,” by Judith Browne Dianis and Christina Sanders.  

First, these authors call Texas’s new Voter ID Law suppression. In the past, including last week’s election, voters could use utility bills, banks statements, paychecks, and their voter registration cards to verify their ID for voting purposes. So a voter’s name must appear in the voter roll book (must be registered), and must show that their address is still what is listed in their registration—thus the utility bills, etc. But it has been possible (and has happened—did indeed happen at my poll watcher trainer’s location last year) that a voter can come in with these documents and vote in someone else’s name. Then the real voter—identified by photo ID and voter registration card—can come in later in the day and find that they cannot vote, because the voter roll shows a signature in their spot. That voter has now been disenfranchised. That actually happens. The new Voter ID Law will prevent that. 

Does anyone get disenfranchised for being unable to get an ID? The law has gone out of its way to specify various ways to prevent any such disenfranchisement. So far it has been impossible to find a single legal voter unable to obtain a photo ID, what would be needed to cash a check or just about any other private transaction. Whether a person drives or not, having a photo ID is something people use almost daily. The law specifies how to handle homebound situations where travel to get ID is difficult. So the law simply does not disenfranchise a single legal voter. It prevents disenfranchisement. 

Then the authors accuse people like me, volunteer poll watchers, of intimidating voters. They seem to be confused; voter intimidation is what the New Black Panthers have done, well documented but not prosecuted by this administration’s Department of Justice. The piece words the accusation this way: 

To complement the voter suppression efforts, tea party-affiliated groups such as the Houston-based King Street Patriots have vowed to send individuals to observe activities at polling places, which could intimidate voters. Hundreds of volunteers have pledged their time to travel to polling stations, question the rights of fellow Texans to cast their ballots and disrupt polling-place activity if they deem it necessary. The idea of tea party volunteers storming polling places evokes strong images of Jim Crow-era voter suppression. 

I didn’t live in the South during the Jim Crow era; I don’t know what evokes those images. But it would take a huge imagination to assume what poll watchers do is in any way related to voter suppression. And the authors must know this. 

Let me just say that I did not, and was trained not to, disrupt polling-place activity. There is no “storming.” One or two poll watchers (maybe up to four at a very busy polling place) show up with credentials in hand, have these signed by the election judge, then place themselves where they can observe unobtrusively as possible, and have no interaction at all with voters. Usually this begins during the set-up before the polling place opens. Voters won’t much notice the poll watchers; they will just look like they have a job to do that doesn’t include interacting with voters.  

There is no voter intimidation taking place. There is no interaction with voters; poll watchers can be ejected for even talking with a voter. They do not generally make eye contact with voters; they are standing or sitting where they can see the voter rolls or the machines. They never stand near a voter in the booth except possibly when a clerk or judge is helping a voter. Then the poll watcher does not watch how the voter votes, but only verifies that the worker is not touching the machine or influencing the voter. Poll workers influencing voters while assisting voters was one of the most common violations in 2010; there were hundreds of such incidents. Unwatched poll workers were used to committing this violation without consequence. 

Poll watchers are overseeing the process, making sure the rules are followed, so that the votes cast are legal and that no legal voter is disenfranchised. Any polling place that is carrying out a free and fair election has that verified by poll watchers. 

Poll watchers are not a new part of the law. In Texas each party is allowed two poll watchers per polling place. Each person on the ballot is allowed two poll watchers per polling place. Any group advocating a position on an issue on the ballot can provide two poll watchers per location. That could become quite a crowd. The reason it doesn’t is a matter of volunteers. Poll watchers, unlike election judges and clerks, do not get paid, so interested parties need to feel the need to verify the election enough to recruit volunteers. The effort to cover all polling places, even those with no previous complaints, shows that the effort is toward verifying free and fair elections, not suppression of legal votes. 

The authors argue that this is a partisan effort. No. King Street Patriots, which they identify, willingly trains anyone from any party. Oddly, the only ones taking them up on it are conservatives. But they are not attached to the Republican Party. KSP has helped train election judges, who are sent by the parties and certified by the county. So far only the GOP has accepted KSP trained judges, but the training would be the same for either party. Neither party has sent KSP-trained poll watchers. So far all poll watchers sent by KSP have been sent by the signed request of candidates on the ballot. I think historically both parties have a dark history of voter fraud, but in recent elections the guilty have been almost exclusively of one party, the one against being watched. 

The authors claim, “Voter fraud is not a problem in Texas. You are far more likely to be killed by lightning than to see a prosecutable case of voter fraud.” Notice the careful wording. It’s not that voter fraud isn’t happening, or even known. It’s that it has to be prosecutable. In order for that to happen, there must be eye witnesses. The witnesses need to turn in incident reports swearing that they observed the fraud. There has to be a poll watcher there to do the witnessing, which these authors are insisting shouldn’t be there. And then there has to be a justice department willing to prosecute when the evidence is there.

In 2010 King Street Patriots found, just in Harris County, some 20,000 fake names on the voter rolls—because they looked. And then they turned in some 800 incident reports following the November 2010 election. Only some of them are prosecutable as fraud; many are simply observed violations of procedure. A likely outcome in a serious case is probably an election judge making numerous purposeful violations being removed from employment in future elections. 

Look at the incident of someone using a utility bill and voting in someone else’s name. It isn’t possible to find out who that illegal voter was; the real voter is disenfranchised, but unless he has a suspicion of who might have snatched his utility bill (maybe a family member, or maybe a stranger with access to the mailbox), then how can there be a prosecution? 

I refuse to be intimidated just because someone accuses me of storming a polling place to disrupt and suppress voting like some Jim Crow bigot. I know the truth, and I know I am working toward free and fair elections. And now I know that these authors and the organizations they represent (Advancement Project, and League of Young Voters Education Fund) are against truth and free and fair elections.