Archive for May, 2012
My favorite passage from John Winthrop’s diary is this, from August 3, 1632:
“After dinner the deputy [Thomas Dudley, Winthrop's periodic rival] then demanded of him [Winthrop---he wrote about himself in the third person in his diary] the ground and limits of his authority, whether by the patent [the colony's charter] or otherwise. The governor [Winthrop] answered that he would challenge no greater authority than he might by the patent. The deputy replied that then he had no more authority than every assistant (except power to call courts and precedency for honor and order). The governor answered he had more, for the patent making him a governor by common law or the statutes, and desired him to show wherein he had exceeded, etc.
“In speaking this somehwat apprehensively, the deputy began to be in passion and told the governor that if he were so round he would be round too. The governor bade him be round if he would. So the deputy rose up in great fury and passion and the governor grew very hot also, so as they both fell into bitterness, but by mediation of the mediators they were soon pacified…”
So if you ever time travel back to Puritan New England in the 1630s, you’ll know what to say if you want to fight. Just bid someone be round if they would.Read Full Post | Make a Comment ( None so far )
Yes, I will continue to re-post this article each time the question of gay marriage comes up in the courts or the polls!
Yesterday a majority of North Carolinians voted to amend the state constitution to read that “marriage between one man and one woman is the only domestic legal union that shall be valid or recognized in this state.” This vote is an example of tyranny, and will likely spawn the same arguments decisions made by voters or state legislatures or state courts in California, Iowa, Vermont, and Massachusetts have, so here is the basic Truth v. Myth post on the role of the judiciary in the United States and the danger of tyranny of the majority in a democracy, which was originally posted in 2009 after California’s Supreme Court decision on gay marriage, once again:
State Supreme Court decisions deeming the bans on gay marriage unconstitutional continue to spawn the usual outraged claims that the judiciary has gone too far. “We’re not governed by the courts,” is the common complaint, as sputtered by one angry man on the radio.
The California Supreme Court’s decision that banning gay marriage is unconstitutional has been met with the by-now common complaint that the Court overstepped its bounds, trampled the wishes of the voters, and got into the legislation business without a permit.
A review of the constitutionally described role of the judiciary is in order.
The famous commentator on American democracy, Alexis de Tocqueville, talked a great deal in his books Democracy in America about the tyranny of the majority. This is when majority rule ends up perverting democracy by forcing injustice on the minority of the public.
For example, slavery was an example of the tyranny of the majority. Most Americans in the slave era were white and free. White and free people were the majority, and they used their majority power to keep slavery from being abolished by the minority of Americans, black and white, who wanted to abolish it. The natural rights of black Americans were trampled by the tyranny of the majority.
Before Brown v. Board of Education in 1954, the majority of Americans were fine with segregated schools. They used their majority power to oppress the minority of Americans who were black, or who were white and wanted desegregation.
In each example, the majority is imposing and enforcing an injustice which is fundamentally incompatible with democracy. They are tyrannizing rather than governing.
The judiciary was created to break this grip of majority tyranny. The legislature—Congress—cannot usually break majority tyranny because it is made up of people popularly elected by the majority. But the appointed judiciary can break majority tyranny because its sole job is not to reflect the wishes of the people but to interpret the Constitution.
If the judiciary finds that a law made by the legislature perverts democracy and imposes the tyranny of the majority, it can and must strike that law down. This is what happened in California. The court found that although the majority of Californians (as evidenced by a previous referendum) had voted to ban gay marriage, that majority was enforcing and imposing injustice on the minority. So the court found the ban unconstitutional.
This is not beyond the scope of the judiciary, it’s exactly what it is meant to do.
I heard a commentator yesterday saying the California court should have left the issue to “the prerogative of the voters”. But if the voters’ prerogative is to oppress someone else, then the court does not simply step aside and let this happen.
The same people who rage against the partial and biased justices who lifted this ban are generally the same people who would celebrate justices who imposed a ban on abortion. People who cry out for impartiality are generally only applying it to cases they oppose. See Dispatches from the Culture Wars for an excellent post demonstrating this.
So that’s what the judiciary does: it prevents the tyranny of the majority from enforcing injustice in a democracy. Like it or not, the “will of the people” is not always sacred, and sometimes must be opposed in the name of equality.Read Full Post | Make a Comment ( None so far )
Let’s take a look at the laws currently in place and being introduced every year requiring ID to vote. I’m indebted for much of my data here to the NCSL Voter Identification Requirements webpage. Go there to see a great map (that unfortunately will not let itself be pasted here).
Strict photo: There are currently five states that require you to have a photo ID before you can vote—Kansas, Pennsylvania, Indiana, Tennessee, and Georgia. Mississippi, South Carolina, and Texas have strict photo laws pending. Wisconsin’s strict photo law was declared unconstitutional by its state legislature but is being appealed and could be put into effect by November 2012. So that would make 9 states with strict photo requirements by the end of 2012. At the start of 2011, only Georgia and Indiana had these requirements, so the number has shot up quickly.
What constitutes a photo ID is defined variously in the different states; some do not give examples but merely say it must be issued by the federal government (passport), state government (driver’s license), city government, or military. Pennsylvania includes IDs from “an accredited PA private or public institution of higher learning (student ID) or a PA care facility”. Kansas specifically names ”government-issued concealed carry handgun or weapon license”, so if you own a gun, you get to vote. In Mississippi, if you have a religious conviction against being photographed you can sign an affidavit instead of presenting a photo ID.
Photo: There are currently six states requiring a photo ID—Hawaii, Idaho, South Dakota, Michigan, Louisiana, and Florida. Alabama has a photo ID law pending. The photo ID law, as opposed to “strict photo,” asks voters to show a photo ID but allows other proofs if they don’t have one, such as a voter with a photo ID vouching for you, giving your birth date, or signing an affadavit swearing to your identity.
Non-photo: Eighteen states require non-photo ID—Alaska, Washington, Montana, North Dakota, Utah, Arizona, Colorado, Texas, Oklahoma, Missouri, Arkansas, Alabama, Kentucky, Ohio, Virginia, South Carolina, Delaware, Connecticut, and Rhode Island. Rhode Island is filing for a change to a photo requirement. Non-photo ID includes bank statements, utility bills, and other items mailed to your local address.
No ID: That leaves 30 states with no ID requirement for voting.
What happens if you show up and attempt to vote but you don’t have your state’s required ID? It varies—and here’s where the fundamental emptiness of these laws comes through. In some states, if the local election official knows you, s/he can waive the law. In others, you sign an affidavit. In others, you fill out a provisional ballot which will be counted if you provide ID before the close of voting, or if the county board of election officials decides to accept it. In short, you go ahead and fill out your ballot in most states and if you plead your case it will be accepted.
The kicker here is that in many states, your case is accepted if your name is on the poll list. Which takes us back to square one: in the U.S., all you need to vote is to register. When you register, you are asked to produce ID saying that you are a citizen of the U.S. and have residency in your state. Once you’ve registered, your name goes into the poll list—that big book the election officials find your name in when you go up to them on election day. If your name is on that list, you have already fulfilled the requirements for voting in the U.S., and you should not be forced to show ID. You have already been verified as a U.S. citizen and state resident, and those are the only requirements. Adding photo ID requirements, then, is the equivalent of a poll tax or literacy test, tactics used during the lowest years of Jim Crow to prevent the poor and black Americans from voting. Forcing people to pay a fee to vote, or prove their English literacy, has been declared illegal in this country. Forcing people to show photo ID should be illegal, too.
Who are the people without valid photo IDs in this country? The elderly, who often no longer drive or use a passport; the poor (who are often non-white); and, importantly, illegal immigrants. It is this last group who are the real targets of photo ID laws. Americans have been told there is an epidemic of voting fraud in this country, and that it is being carried out by illegal immigrants. But independent inquiries have turned up no such epidemic, and illegal immgrants are the last people to willingly risk having their status found out by attempting to vote. If you think about it, describing voter fraud in 2012 as someone amassing millions of names, getting them into the list of registered voters, then getting those millions of people to go vote illegally is absurd. Any voting fraud carried out today would be a hacking of the computer systems that tabulate votes, not a hacking of your local registered voters database at town hall.
Photo ID laws are blatant attempts to restrict voting rights. They impact the poor, the non-white, and the elderly—groups assumed to vote Democratic, which may explain the strong Republican backing for these laws. If your name is on the poll list there is no constitutional law requiring you to show more ID than that. Until the accusations of voting fraud are proved, we should all be fighting on our local state level against these laws.Read Full Post | Make a Comment ( 1 so far )