Monday, January 10, 2022

Brooks Sights a Squirrel

David F. Brooks phoning it in ("Why Democrats Are So Bad at Defending Democracy"):

Paragraph 3:

As Yuval Levin noted in The Times a few days ago, it’s become much easier in most places to register and vote than it was years ago. We just had a 2020 election with remarkably high turnout.

Paragraph 7:

As my Times colleague Nate Cohn wrote last April, “Expanding voting options to make it more convenient hasn’t seemed to have a huge effect on turnout or electoral outcomes. That’s the finding of decades of political science research on advance, early and absentee voting.”

These two don't actually contradict each other from a strictly logical standpoint, in the sense that Levin probably isn't claiming there is any causal connection between expanded voting options and the 2020 turnout, and Brooks certainly isn't. But the interesting thing is that both points, Cohn's assertion that expanded voting doesn't affect turnout and Levin's that it doesn't not affect turnout, support Brooks's argument here, which is to deny the "myth" that there's a crisis across the US electoral system: In fact there is a crisis, Brooks agrees, but it's only in one part:

Elections have three phases: registering and casting votes, counting votes and certifying results. When it comes to the first two phases, the American system has its flaws but is not in crisis.... The emergency is in the third phase — Republican efforts to overturn votes that have been counted.

But the Democrat-sponsored John Lewis Act and For the People Act only apply to phase 1, which is not in crisis, at least "often seemingly" not in crisis, however flawed:

Given the racial history of this country, efforts to limit voting, as some states have been implementing, are heinous. I get why Democrats want to repel them. But this, too, is not the major crisis facing us. That’s because tighter voting laws often don’t actually restrict voting all that much. Academics have studied this extensively. A recent well-researched study suggested that voter ID laws do not reduce turnout. States tighten or loosen their voting laws, often seemingly without a big effect on turnout. The general rule is that people who want to vote end up voting.

Also, the proposed laws are hard to explain to voters (that's presumably why Brooks doesn't know that the John Lewis Act doesn't forbid voter ID laws, though it does subject new voter ID laws to preclearance, together with laws relating to many other problems that the "recent well-researched study" didn't examine at all, like early registration, early voting, absentee voting, selective shutdown of polling places and dropboxes in counties with large minority populations, periodic purging of the voter rolls sometimes without informing the voters, criminalizing actions of providing assistance or information to voters who need it, etc., other casualties of the Supreme Court's gutting of the preclearance rules of the Voting Rights Act in its 2013 Shelby County vs. Holder ruling) and "cater to D.C. interest groups", and are difficult to pass. (I know, usually the ones that cater to D.C. interest groups are the easy ones to push through Congress, but maybe what Brooks means by "D.C. interest groups" is different from what we mean—he doesn't say).

Therefore, Brooks argues, Democrats should be turning their attention from these often seemingly not in crisis matters and focusing on the third of the system that really is in crisis, the routines in which state governments certify their Electoral College slates after a presidential election and the vice president certifies the results of the Electoral College vote, which almost failed us a year ago and might well do so again the next time somebody other than Kamala Harris is vice president, which could be as early as 2028, and maybe the routines in which the state That would be easy to explain to voters and pass like a dream.

In fact, Senate Minority Leader Mitch McConnell sent a signal last week through Politico that he might be interested in signing on to a bill that would do something, it's not yet known what, to clarify the vice president's and congressmembers' roles in the process:

The biggest move came from Senate Minority Leader McConnell, who Democrats theorize is merely trying to distract from their work on far more comprehensive election reform. Still, the GOP leader said in a brief interview that he would be open to entertaining changes to the 1887 law, which allows members of Congress to dispute election results.

“It obviously has some flaws. And it is worth, I think, discussing,” McConnell said Wednesday. “It obviously has some flaws. And it is worth, I think, discussing,” McConnell said Wednesday.

On the angle of the state legislatures, I've finally come across a concise statement of the current state of play in a report from Politifact, and it's really not very impressive:

  • Arkansas and Kansas both passed laws this year that might enable overturning elections: Arkansas by inviting the state Board of Election Commissioners to investigate the conduct of elections and "institute corrective actions", Kansas by enjoining the secretary of state from "entering into a consent decree" in re elections without approval from the Legislative Coordinating Council Joint Committee, but nobody knows what either one means;
  • A new Georgia law allows the state board of elections to conduct a performance review of local election officials and suspend or possibly fire them, but it never got involved in the case of the Fulton County elections director Steve Barron, whose firing last February by the county board never took effect but who resigned anyway after the November elections, and nobody knows what that law means either (last week, the state finally did open an investigation into allegations of "ballot harvesting" in the 2020-21 election and runoff, but it doesn't seem to be a "performance review" in the terms of the new law);
  • Arizona state representative Shawnna Bolick (author of Playtime In Phoenix: The Ultimate Guide To Learning & Having Fun With Kids! and wife of the Charles Koch–affiliated libertarian agitator Clint Bolick) introduced a bill to let the legislature "revoke the secretary of state’s issuance or certification of a presidential elector’s certificate of the election" if they felt like it, " but it didn't go anywhere, though the legislature did put through a bill that took away Democratic secretary of state Katie Hobbs's power to defend election lawsuits against the state and turn it over to the attorney general (seriously, the law expires at the end of this year, when Hobbs leaves office);
  • In December 2020, some Republicans in the Pennsylvania state legislature proposed "withdrawing" the certification of the state's Biden electors and appointing their own electors but the Republican leadership wouldn't go along with it;
  • Also in December 2020, two Republican legislators in Wisconsin sued to overturn Wisconsin's presidential electors on the grounds that approval from the state legislature is constitutionally required, but U.S. District Judge James E. Boasberg ruled that "the suit rests on a fundamental and obvious misreading of the Constitution. It would be risible were its target not so grave: the undermining of a democratic election for president of the United States."

If these states are focusing on stealing the Electoral College to put Trump back in the White House in 2024, they haven't been making very good use of their time so far. Also in Wisconsin, Republicans just announced that there's "not a chance" the state legislature will try to take over the election process : 

I'm going with "trying to distract Democrats from work on far more comprehensive election reforms".

Especially since Senator Marco Rubio is buttressing Brooks's message about how there "is no crisis" in phase 1, the casting of votes:

It's really maddening. It may be easier on average for Americans to vote because 25 states enacted 66 laws last year making it easier, but then 19 states enacted 33 laws making it harder, according to the Brennan Center, and you can guess what kinds of states:

In an emerging trend, restrictive laws in four states — Georgia, Iowa, Kansas, and Texas — impose new or more stringent criminal penalties on election officials or other individuals.footnote3_mnlbh5u3  These new criminal laws will deter election officials and other people who assist voters from engaging in ordinary, lawful, and often essential tasks. People in Georgia can now be charged with a crime for handing out water or snacks to voters waiting in line at the polls.footnote4_bby62qi4  In Iowa and Kansas, people could face criminal charges for returning ballots on behalf of voters who may need assistance, such as voters with disabilities.footnote5_k466uul5  And in Texas, election officials could face criminal prosecution if they encourage voters to request mail ballots or regulate poll watchers’ conduct....footnote6_ff31alr6

The state laws restricting voting access are not created equal. Four of the 33 laws are mixed, meaning they contain pro-voter policies as well as policies that make voting more difficult (IN S.B. 398, KY H.B. 574, LA H.B. 167, OK H.B. 2663). Other laws are relatively narrow in their scope (e.g., NV S.B. 84, UT H.B. 12). By contrast, Florida, Georgia, Iowa, and Texas have enacted omnibus laws that each contain several new restrictive provisions.footnote7_s7em52l7

Four states have passed multiple restrictive voting laws. Arkansas and Montana passed four such laws each, while Arizona and Texas passed three each).

Note the dominance of Texas, Florida, Arizona, and Georgia in these listings: the four states, of those that are turning bluer, in which Republican dominance of the legislative and executive branches makes it possible to force changes. That's how they're aiming at the 2022 and 2024 elections, not on the "fundamental and obvious misreading of the Constitution".

Vote suppression has served conservatives really well for a century and a half, together with the more recent emphasis on the lowest-level politics like school boards, and they're still working on it, in spite of efforts by Brooks, McConnell, Rubio and others to make us look at that squirrel. 

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