Legal Docket: Where liberty took root

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NICK EICHER, HOST: It’s The World and Everything in It from WORLD Radio, celebrating 15 years. Today is Monday the 26th of October.

Thanks for making us part of your morning routine. Good morning. I’m Nick Eicher.

MARY REICHARD, HOST: And I’m Mary Reichard. Time now for Legal Docket.

Something a bit different today, given that the midterm election is only 8 days away.

The question: Who gets to decide how Americans vote?

The Constitution gives states broad authority to run elections. But Congress makes laws governing federal elections, and federal judges decide whether election rules comply with the Constitution.

EICHER: When those responsibilities overlap, that creates conflict. Legal conflict, and lots of it. Courts decide all kinds of disputes: concerning voter I.D., proof of citizenship, mail-in ballots, congressional districting, to name just a few.

REICHARD: To help understand what the Constitution says about elections, I spoke with Hans von Spakovsky. He’s a senior legal fellow at Advancing American Freedom, a former commissioner on the Federal Election Commission, and a former counsel to the Assistant Attorney General for Civil Rights at the Justice Department. He has spent decades working with election law.

VON SPAKOVSKY: Well, when it comes to federal elections, Congress and the state share responsibility. Congress, for example, can set the time, place, and manner of congressional elections. They can set the date for presidential elections. The qualifications of voters, who's eligible to vote in those federal elections, that is actually given to the states.

EICHER: Dividing responsibility like that means election laws tend to differ from state to state, and differ quite a lot.

For example, one state has weeks of early voting. Another state may have a very short window in which to vote.

Von Spakovsky says the Constitution permits this, so long as states comply with constitutional protections as well as federal law.

VON SPAKOVSKY: Some states are very good at the kind of security measures they put in. Other states like California, New York, are very bad at it. What the Constitution says is that through the legislation that Congress has passed to uphold various amendments like the Thirteenth, Fourteenth, and Fifteenth Amendment, states have a great deal of leeway. They, however, cannot discriminate on the basis of race when they are putting in election rules.

REICHARD: When those rules are challenged, the courts must decide whether a state has crossed a constitutional line.

Those decisions are especially consequential.

But how did election rules become such a political flashpoint? I put that question directly to von Spakovsky:

Hans, It seems like every election cycle we have all this contentious talk about people voting who shouldn't have been voting. Why has the division of power become so contentious, do you think?

VON SPAKOVSKY: Well that bipartisan split really has only occurred in the last twenty years. In 2005, for example, Jimmy Carter and James Baker formed a bipartisan commission, election reform. And for example, back then they both recommended you should require an ID to vote. That was a bipartisan recommendation. They also recommended minimizing mail-in voting only for those who really need to do it. And it's really since then we've had the split. Biggest fight, Mary, recently is about aliens registering and voting. We've had an honor system for a long time. You're simply asked, are you a citizen or not? And if you say yes, you're registered to vote. The problem with that is there are many, many examples of aliens who are not U.S. citizens getting registered to vote. So the biggest fight has been over requiring states to actually verify and check and make sure you are a U.S. citizen when you registered and vote.

REICHARD: You know I often read in certain media outlets there are just one or two examples of illegal aliens registering to vote or actually voting. They’ll say, you know, “This is much ado about nothing.” What does reliable evidence tell us about the extent of this problem?

VON SPAKOVSKY: Well, the problem isn't illegal aliens, it's aliens in general, whether they're here legally or illegally. And if you want just one example recently that puts that one or two claim to shame is, as you know, just about what, two months ago, the New Jersey governor had to admit that because of some supposed glitch at their DMV, they had registered 6,600 aliens to vote. She didn't say how long this had been going on, but clearly it was a problem. Not so many years ago the Pennsylvania Secretary of State was forced to resign after he admitted similarly that due to some kind of glitch, as he termed it, in Pennsylvania's DMV driver's licensing system, that at least 10,000 aliens had gotten registered to vote. And apparently this had been going on for years.

REICHARD: And do we know whether those excess registrations in New Jersey and Pennsylvania went in primarily one party's direction, or is that unknown?

VON SPAKOVSKY: No, that's unknown because the New Jersey governor refused to identify who the aliens were and refused to give that information, for example, to the Department of Justice, which is supposed to investigate and prosecute aliens who register and vote in this country

REICHARD: Now it seems every election year there's some election-related case that reaches the Supreme Court. What legal principles guide justices when an election dispute reaches the High Court?

VON SPAKOVSKY: Well, there's two things. I mean, one, they look at the Constitution and the division of responsibility between the federal government and the states. What can states do? What can the federal government do? But the other big principle they've developed in recent years is a principle saying that courts should not get involved in making changes in the election process shortly before the election. That causes confusion and chaos for election officials and also for voters.If there is a dispute, we'll settle it after the election, but you can't do it in the middle of the election process.

EICHER: The Supreme Court also confronts questions that go beyond the mechanics of voting. One is how states draw congressional districts and whether that violates protections against discrimination based on race.

In one recent case, Louisiana versus Callais, the court considered how race may be used in drawing those district lines.

Von Spakovsky sees that decision as an important statement about equal protection:

VON SPAKOVSKY: That was a decision about the Voting Rights Act which says you know you can’t discriminate on the basis of race in the voting process. A lot of folks were abusing that law. They were trying to claim politics was the same thing as racial discrimination. And what the Supreme Court said in that decision was and quite properly, you cannot use race when you are redistricting, when you are drawing boundary lines for political districts, whether it's at the local or congressional level. And I think that's a very important upholding of equal protection, the Voting Rights Act, and our amendments to the Constitution that say racial discrimination and race should play no part in the political process.

That case illustrates a difficult distinction in election law: the difference between racial discrimination and political advantage. The Court’s duty is to apply constitutional and statutory protections even when the consequences are politically significant.

REICHARD: I asked von Spakovsky what he thinks Americans misunderstand about the Supreme Court’s role in protecting voting rights.

VAN SPAKOVSKY: Well, I think too many people think that they engage in decisions trying to get certain political policy outcomes. They don't. They've been very good at saying whatever the rule is that a state, for example, has put in place and it's up before the court, can they do this constitutionally?

The judicial role, he says, is not to decide which election rules are preferable, but whether those rules are lawful.

EICHER: For von Spakovsky, election law is more than a professional interest.

His admiration for the American system started a long time before he became a federal election commissioner or even a lawyer. His parents were immigrants who’d experienced political oppression firsthand.

VON SPAKOVSKY: Oh yeah, I'm first generation. I was born and raised here, but my mother was German, grew up in Nazi Germany. My father was Russian, escaped communism. They met in a refugee camp in 1946 in the American occupied sector of Germany, immigrated to the U.S., became citizens. And I've always understood from them how important our elections are and how vigilant you, as a member of the public, have to be to maintain our democratic republic.

REICHARD: His parents made sure that lesson was practical and not just theoretical.

VON SPAKOVSKY: You know, they thought it was a way of teaching me good civics, how to be a citizen, when I was not old enough to vote, to take me with them when they went into the polling booth.

I asked him whether he still prefers to vote on Election Day.

VAN SPAKOVSKY: I try to go on Election Day because that's the way my parents brought me up….My schedule doesn't always allow me to do it, but I prefer voting on Election Day.

That lesson came from parents who knew what it meant to live without the freedoms Americans enjoy. And that perhaps explains why he still remains so invested in the process.

Behind the legal battles is a foundational idea: the right of citizens to choose their representatives, and the responsibility to preserve that right.

And that’s this week’s Legal Docket!

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