Hillary and her posse pressed hard on their noble twin themes of emasculation and elitism.
Yes. Hillary’s theme.
Seriously. Maybe Kerry should have tried that logic out in 2004. “Why does the media keep setting up all these hurdles in front of me? I’ve proven that I’ve won! Obviously, the relevant criterion for judging the success of my campaign should be my performance in an arbitrarily selected group of large states, not irrelevant factors like ‘electoral votes’ or even ‘the popular vote.'”
Apparently, “critics of evolution are turning to a higher authority: state legislators.” In some states, this has involved private screenings of Ben Stein’s creationist wankery. Goody. I think this speaks for itself:
The academic-freedom bills now in circulation vary in detail. Some require teachers to critique evolution.
Matt says that “I think there’s an underexplored historical counterfactual in which the United States uses a different kind of electoral system — like popular vote with a run-off — that resulted in a Stephen Douglas presidency without any change in the underlying shape of public opinion.” One of the best parts of Gerry Mackie’s brilliant demolition of public choice claims the democratic outcomes are arbitrary is an extended analysis of the 1860 election. One of the things he shows is that under any common method of counting votes more accurate than the plurality system (such as Condrocet, Borda, or approval voting), Douglas would have won.
The larger context of the argument is that the 1860 election is one of the key examples of the anti-democratic theories of Commander Riker and his disciples. Riker claims that there was a cycle in the 1860 in which any of Lincoln, Douglas or Bell could have won according to different rules and comparing pairs of candidates would lead to a tie. As Mackie points out, though, once you remove Riker’s exceptionally implausible assertion that Bell — the candidate of the more moderate South that got roughly 2% of the vote in states carried by Lincoln — was the second choice of 75% of Lincoln voters, the cycle vanishes. In fact, any reliable voting system that didn’t entirely throw out alternate choices in the absence of a majority would produce Douglas > Lincoln > Bell > Breckinridge. The 1860 election wasn’t evidence of a cycle; rather, it’s just evidence that 1)plurality-based electoral systems are less reliable than many other means of tabulating votes, and 2)institutions designed to constrain majoritarian preferences will sometimes constrain majoritarian preferences.
I’ve sometimes wondered whether this fact has created artificial support for the indefensibly anachronistic system that the U.S. uses to choose presidents. Because the country got lucky in the leader chosen against the majority of the country’s wishes in 1860 and the outcome of the Civil War the election made inevitable was relatively fortunate, what would otherwise be the best example of the electoral system going haywire is obviously not a politically useful one. But it should be remembered that given somewhat different immigration and migration patterns the system could have also given us a President Breckinridge, and the most recent example of the plurality/electoral college system producing a different winner than a more accurate system would was rather less fortunate.
I’m happy to sit back and watch this unfold, but two points first. First, Hayes writes:
“Although her emails may have occasionally made their way to Bush administration officials, no one I know took her arguments very seriously.”
Except for that time that Paul Wolfowitz told Richard Clarke that Clarke needed to stop worrying so much about Usama bin Laden and focus on Mylorie’s argument that groups like al-Qaeda were just beards for Saddam Hussein. Or that time Wolfowitz sent Jim Woolsey abroad to check out Mylroie’s claims. But whatever!
The end of this year really can’t come soon enough. Also remember that Mylorie collaborated on a book with the Liberal Media’s very own Judy Miller!
Jack Balkin makes an excellent point here. Defenses of the Supreme Court upholding the Indiana voter ID law claim that the requirement will somehow be part of a political bargain to improve access to voting, which run into the obvious problem that there’s no evidence whatsoever of such a bargain in Indiana, or that erroneous voter perception of voter fraud stands in the way of increasing voter access if the legislature wants to do it. (Indiana made no effort to respond to actual abuses of absentee balloting, because that increased access benefits Republicans.)
Crawford is a case where modest judicial review would actually facilitate democracy: broadening access of powerless groups to the political process is where judicial review is at its most defensible. Souter and Breyer’s dissents — properly — did not rule out Voter ID laws regardless of the context. If the restrictions were actually tied to efforts to increase voter access, or there were actual evidence that in-person vote fraud was a problem, this would be a different case. But absent such balancing state interests, permitting Indiana to burden the ability of the most powerless people in the state to vote for reasons of political self-dealing rather than to address serious state interests is bad for democracy.
The other thing to add is that the fact that claiming that only a relatively small, particular (and especially politically powerless) class of people lacks access to photo IDs justifies facially upholding the law is rather strange. As I’ve said with respect to similar arguments made to justify arbitrary limitations on a woman’s right to choose, this logic makes “inequitable effects an argument in favor of the constitutionality of such regulations.” This argument seems to stand Carolone Products on its head: burdens on fundamental rights are more acceptable as long as only discrete and insular minorities are affected. This is, to put it mildly, an unattractive conception of the role of judicial review.
Wow, you know the Missouri state legislature’s latest round of “if you choose to get an abortion, you must be an irrational, hysterical woman” regulations are bad when even Will Saletan can see through them. This may be too optimistic, but the only potential good thing to come out of Kennedy’s openly sexist opinion in Carhart II is that it may have given away the show to at least some mushy abortion centrists.
In light of Scalia once again dismissing those who consider Bush v. Gore less than a noble application of constitutional principle, this passage from his concurrence in Crawford can only be read as black comedy:
That sort of detailed judicial supervision of the election process would flout the Constitution’s express commitment of the task to the States. It is for state legislatures to weigh the costs and benefits of possible changes to their election codes, and their judgment must prevail unless it imposes a severe and unjustified overall burden upon the right to vote, or is intended to disadvantage a particular class. Judicial review of their handiwork must apply an objective, uniform standard that will enable them to determine, ex ante, whether the burden they impose is too severe.
Yes, how outrageous and inconsistent with federalism it would be for the Supreme Court to use the equal protection clause to engage in the ad hoc supervision of state election procedures, without anything resembling an “objective, unifrom standard”! Note: this principle void if it can put a Republican president in the White House.
The Supreme Court’s decision upholding Indiana’s vote ID law was unable to secure 5 votes for a single rationale. Stevens, in an opinion joined by Kennedy and Roberts, rejected the facial challenge to the law but left open the possibility of future litigation if it was proven to be an undue burden. Scalia, in a concurrence joined by Thomas and reasonable, moderate Samuel Alito wanted to foreclose future litigation. (I assume Stevens may have joined the majority partly to keep Kennedy and Roberts on board with a more minimalist opinion.)
The key problem with the decision to uphold the statute is summed up in Souter’s dissent: “a State may not burden the right to vote merely by invoking abstract interests, be they legitimate, see ante, at 7–13, or even compelling, but must make a particular, factual showing that threats to its interests outweigh the particular impediments it has imposed. The State has made no such justification here, and as to some aspects of its law, it has hardly even tried.” Consider this remarkable passage from the Stevens opinion:
The only kind of voter fraud that SEA 483 addresses is in-person voter impersonation at polling places. The record contains no evidence of any such fraud actually occurring in Indiana at any time in its history. Moreover, petitioners argue that provisions of the Indiana Criminal Code punishing such conduct as a felony provide adequate protection against the risk that such conduct will occur in the future. It remains true, however, that flagrant examples of such fraud in other parts of the country have been documented throughout this Nation’s history by respected historians and journalists, that occasional examples have surfaced in recent years, and that Indiana’s own experience with fraudulent voting in the 2003 Democratic primary for East Chicago Mayor—though perpetrated using absentee ballots and not in-person fraud—demonstrate that not only is the risk of voter fraud real but that it could affect the outcome of a close election.
So the only type of fraud shown to have occurred in Indiana history is a type the statute specifically doesn’t address, and as it happens this apparently irrational choice happens to coincide with the partisan interests of the legislators who enacted the statute. This really isn’t good enough if you want to burden the fundamental right to vote.
The other thing to mention is that the “as-applied” challenge is problematic in the context of elections, because there generally isn’t a good remedy. It’s unlikely in the extreme that if the burdens imposed by the statute were decisive that the election would be run again. The better option would have been to strike the legislation and invite the legislature to craft legislation more closely tailored to its asserted interests.
Dismayingly but not surprisingly, the Supreme Court upheld Indiana’s Imaginary Vote Fraud and Democratic Vote Suppression Act today. Vote was 6-3, Stevens joining the majority and writing for the plurality, leaving open the possibility of an as-applied challenge. More later this afternoon.