Dworkin the Election—II (NYRB 2012)

November 8, 2012Issue

Frank Rich, David Cole, Ronald Dworkin, and Russell Baker

Every four years liberals and conservatives declare the coming presidential election the most important

in decades. And every four years, in recent years, they have been right. This election is even more

critical than the last one because the Republican Party has suddenly bolted to a new and radical

right-wing extreme. Its Tea Party platform shows an obtuse commitment to the economic strategies

that produced disaster in 2008 and shameless disdain for poor people and for minorities of every kind.

Except the very rich: the Tea Party, and Romney—before the fudging during the first debate

—promised to lower taxes for them and nevertheless to reduce the federal deficit through an unnamed

and mysterious policy of closing loopholes. In fact such tax cuts would either require savage spending

cuts on already pared-down welfare programs for the poor and on desperately needed infrastructure

repair or—equally likely—force a frightening increase in the already dangerous national debt. The

election of Mitt Romney and a Republican Congress could well be a catastrophe for both economic

stability and social justice.

The catastrophe might very likely be prolonged, for decades, by Romney appointments to the Supreme

Court. Four of the Court’s nine justices—including two of its four moderates—are well into their

seventies, and the odds that the next president will have a dramatic and enduring effect on the Court’s

composition are strong, particularly if, following established Republican tradition, he appoints justices

young enough to stay in power long after the political climate that produced their appointments has

disappeared.

The great danger of a strengthened radical right-wing court is sufficiently demonstrated by the rain of

legally indefensible and politically retrograde 5–4 decisions in recent years, including Bush v. Gore,

which cursed us with George W. Bush, Gonzales v. Carhart, which sustained a cruel federal law

outlawing “partial-birth” abortions, Seattle School District and Jefferson County Board of Education,

which overturned voluntary, modest, and effective programs aimed at increasing racial diversity in

public schools, and the infamous Citizens United ruling that corporations have all the First Amendment

rights of real people so that they have an unlimited right to spend their corporate treasuries on

television ads opposing candidates whose policies they think against their financial interest.

The deeply corrosive impact of that last decision is already apparent in this election. As The New York

Times reported:

This is the first presidential election since the Supreme Court’s decision in the Citizens United

case removed the last barriers to campaign spending by corporations and other groups. Analysts

are bracing for a tidal wave of money from rich individuals, companies and labor unions that

could alter the political landscape and transform American democracy.1

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Much of this money comes from groups called Super PACs, which are subject to no restrictions except

that they must act independently of the parties’ official campaigns. It is not plain that Romney will

raise more money from Super PACs than Obama in this election. Priorities USA, the main group

supporting Obama, raised $10 million in August, compared to $7 million by Restore Our Future, the

main pro-Romney group, though the latter group had raised much more money earlier. That hardly

diminishes the danger to democracy of large and often undisclosed corporate gifts.

The Citizens United decision was plainly wrong in constitutional principle; there is no even remotely

plausible interpretation of the First Amendment that justifies it. Some commentators declared, when

the decision was announced, that though it was wrong as a matter of constitutional law, it would cause

little damage because corporations would be wary of taking political positions that might anger some

of their consumers.

That sanguine prediction is no longer plausible, as the size of corporate contributions in this election

has already shown, partly because corporations and megarich individuals have found a way to give to

Super PACs without disclosing their identities. They give to nonprofit institutions that are allowed to

contribute to Super PACs without reporting where their own money comes from. Democrats in

Congress tried to change the law to require these institutions to disclose the sources of their

contributions, but Republicans blocked the change. The US Chamber of Commerce opposed disclosure

for exactly the reason that was supposed to limit corporate contributions. Disclosure, it said, could

open corporations to “retaliation against unpopular or unfavorable political views, which also infringes

constitutional rights.” So careful corporations need not fear offending consumers after all.

t is therefore regrettable that the general public takes so little interest in the Supreme Court and that

the Obama campaign consequently rarely mentions the issue. It seems impossible to interest the

public in the issue. Chief Justice John Roberts’s surprising, apparently last-minute, decision to vote to

sustain President Obama’s Affordable Care Act has contributed to the public apathy, and that might

help to explain his decision. If he had joined the four other right-wing justices in striking down the

act, Obama would almost certainly have campaigned against the decision, and perhaps made the

Court’s power and politics the issue it should be, a result Roberts presumably wanted to avoid.

If the public had been engaged, it would have been warned about a further decision compromising

democracy that the Roberts Court seems poised to make. It seems likely to declare unconstitutional

crucial parts of the venerable Voting Rights Act of 1965. Section 5 of that act requires all or some

counties in states that have a particularly egregious record of voter discrimination in the

past—Alabama, Alaska, Arizona, Georgia, Louisiana, Mississippi, South Carolina, Texas, and

Virginia—to obtain a “preclearance” from the Department of Justice or from a three-judge federal

court before they change their voting laws in any way. The act was a celebrated civil rights victory

when first adopted, and it has been reenacted by Congress several times since, most recently in 2006

when it was extended for twenty-five years by a large majority of both houses. It places the burden of

proof on a covered state to show that any new law would not have the effect of disadvantaging

minority voters.

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Section 5 continues to be an important safeguard of electoral fairness. Since 2010, when the

Republican Party greatly expanded its power in state governorships and legislatures, it has tried

through a variety of means to minimize the electoral impact of citizens likely to vote Democratic or to

prevent them from voting at all, and Section 5 has been crucial in blocking the most blatant of these

attempts.

When Florida recently decided to reduce the number of early-voting days, which allow people to vote

who cannot take time off on Election Day, it was barred from making the change in five counties

covered by the preclearance requirement. So it simply exempted those counties from the change. The

Department of Justice then objected to different election schedules in different counties and required

Florida to negotiate a common voting schedule for the entire state. Freed of the requirements of

Section 5, Florida would have had much greater latitude to curtail early voting.

When Texas was recently awarded four additional congressional seats, the state legislature drew the

new boundaries so as to reduce the chances that Hispanics would have an impact on elections in mixed

districts. The plan was blocked by Section 5: neither the Department of Justice nor a federal court

would grant the preclearance the act required. A three-judge federal panel said, unanimously, that the

evidence left no doubt that the plan was designed to reduce the overall voting power of Hispanics in

the state.

ince 2010, several states (all but one with Republican governors) have enacted laws that require

voters to present official identification cards, in many cases with a photo, at the voting booth. The

most common ID is a driver’s license; people who do not have one are mostly poor and

disproportionately black or Hispanic. Such citizens can obtain substitute ID cards in those eleven states

but only after burdensome and in some cases expensive application, often requiring applicants to travel

a considerable distance to official card-dispensing offices.

The antidemocratic intent of voter ID laws has barely been disguised. A Pennsylvania Republican

official openly declared that that state’s new ID law would help ensure that Romney carried the state.

Governor Rick Perry of Texas rushed through a particularly strict ID law as “emergency” legislation,

bypassing established procedures to ensure that the law would be in place for the coming election.

Perry’s law provided that gun permits, among other official certificates, would be acceptable ID cards

but that student registration cards would not.

When Republicans defend voter ID laws at all, they claim them necessary to prevent voter

impersonation fraud. But there are extremely few documented cases of such fraud in recent years.

Pennsylvania, when its law was challenged in federal court, declared that it did not rest its case on any

assumption that fraud was a serious problem, and an executive of the South Carolina Election

Commission conceded, in court, that the new law would not prevent voter fraud.

Courts have declared several voter ID laws illegal, or postponed their enforcement, after extensive

litigation. But Republicans try to adopt such laws shortly before an election so that litigation cannot

prevent their immediate use. A Pennsylvania judge refused to enjoin its ID law while it was being

tested in the courts; it was finally denied immediate effect on October 2, only weeks before the

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presidential election. The Pennsylvania judge ruled that people could vote without ID cards, in this

election, though they could—pointlessly—still be asked to produce one. The preclearance demanded

by Section 5 provides, for the historically most racist states, a much more effective barrier. Texas’s

statute could not go into effect without positive clearance, and voter ID laws were refused preclearance

in South Carolina.

In the Texas case, a three-judge federal court declared, in a long and painstaking opinion by Judge

David Tatel of the D.C. court, that the evidence Texas offered not only failed to prove that its law was

not discriminatory, as the act required it to show, but positively proved the opposite: that the law was in

fact thoroughly discriminatory.

However, Shelby County, Alabama, which is covered by Section 5, has now asked the Supreme Court

to declare Section 5 unconstitutional, and it has been joined by the attorneys general of five states.

They were all but invited to sue by Roberts, who, in a related 2009 case, went out of his way to suggest

that he thought Section 5 unconstitutional, and that he would vote to strike it down if asked to do so.

“Things have changed in the South,” he said. “Voter turnout and registration rates now approach parity.

Blatantly discriminatory evasions of federal decrees are rare. And minority candidates hold office at

unprecedented levels.”

Justice Clarence Thomas, speaking for himself, was even clearer: “I conclude,” he said, “that the lack

of current evidence of intentional discrimination with respect to voting renders Section 5

unconstitutional.” It seems likely that the rest of the right-wing justices will follow this lead and agree

to strike down the preclearance requirement, perhaps in yet another 5–4 decision.

Roberts’s statement was curious. He summarily contradicted Congress on a complex judgment of fact,

in spite of the extensive record of continuing discrimination that Congress compiled in renewing the

Voting Rights Act in 2006, and in spite of the large majorities that voted for renewal. The recent Texas

examples alone, in which obviously discriminatory redistricting plans and voter ID laws were blocked

by the preclearance requirement, would seem to indicate that Congress had at least a substantial basis

for its decision.

In any case, the coming Supreme Court ruling will be yet another decision testing the integrity of our

democracy. From time to time, when a new justice is nominated and Senate hearings are held, the

nation’s attention does shift, mildly, to constitutional issues. But these hearings are a sham: candidates

say only that they believe in applying the law and senators duly nod approval.

Most politicians apparently assume that the character of the Supreme Court is too abstract an issue to

figure in an election campaign. But FDR successfully campaigned against the “nine old men” who

were blocking his New Deal, Nixon made the Court’s race decisions the center of his “southern

strategy,” and generations of Republicans have been elected by denouncing the Court’s 1973 decision

recognizing abortion rights. The record of the Roberts Court is already one of the worst in our history.

In pursuing a right-wing agenda it has overruled many precedents. Next term it will probably not just

strike down Section 5, but also overrule its own recent decision allowing limited affirmative action. It

gives every sign of soon reversing abortion rights. Perhaps it is impossible to make independent voters


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alert to these dangers. If so, that is a shame.

Eduardo Porter, “Unleashing the Campaign Contributions of Corporations,” The New York Times, August 28, 2011. ↩

See my “ The Decision That Threatens Democracy,” The New York Review, May 13, 2010. ↩

See US Chamber of Commerce, “Letter opposing the latest House and Senate version of the so-called DISCLOSE 2012 Act, S. 3369 and H.R.

4010,” July 12, 2012. ↩

See my “ A Bigger Victory Than We Knew,” The New York Review, August 16, 2012. ↩

Annie-Rose Strasser, “Pennsylvania Republican: Voter ID Laws Are ‘Gonna Allow Governor Romney to Win,’” ThinkProgress, June 25, 2012. ↩

Nick Wing, “Pennsylvania Voter ID Law Trial Set to Begin as State Concedes It Has No Proof of In-Person Voter Fraud,” The Huffington Post,

July 24, 2012. ↩

Luke Johnson, “Alan Clemmons, South Carolina Rep, Admits ‘Poorly Considered’ Reply to Racist Email on Voter ID Law,” The Huffington Post,

August 29, 2012. ↩

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Dworkin the Election—II (NYRB 2012)