Yet another major poll demonstrates high levels of consistent support for safe, legal abortion rights, and an election in which social issues are not driving the agenda. Not surprisingly, it's the economy, proving that most Americans aren't stupid.
A poll conducted September 12-16, by the New York Times and CBS News (PDF), demonstrates once again the strong support for legal abortion rights in the mainstream of American life. The poll also indicates that very few people will be making their minds up based on social issues, with 48 percent saying the economy is the most important issue. Following far behind the economy is terrorism and national security cited by 14 percent and health care/gas prices and energy both coming in at 10 percent as most important to voters. Only five percent said they would decide based on "something else", not necessarily social issues.
Two questions about abortion were rotated with half of the 1,113 respondents in the sample answering one of the questions.
Question 73: Which of these comes closest to your view? 1. Abortion should be generally available to those who want it; OR 2. Abortion should be available but under stricter limits than it is now; OR 3. Abortion should not be permitted?
Stricter Limits 42%
Not Permitted 19%
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Question 74: What is your personal feeling about abortion: 1. It should be permitted in all cases; OR 2. It should be permitted, but subject to greater restrictions than it is now; OR 3. It should be permitted only in cases such as rape, incest and to save the woman’s life; OR 4. It should ONLY be permitted to save the woman’s life?
Permitted in all cases 31%
Permitted with greater restrictions 19%
Permitted for rape/incest/save life 28%
Only permitted to save the woman’s life 15%
Not permitted at all 4%
These are questions consistenly asked over many years in this poll and these numbers have remained steady, if anything they have shown a slight increase in support for the right to safe, legal abortion.
Far-right social conservatives seek to overturn Roe v. Wade which would ban abortion automatically in 23 states and set the stage for Congress to pass a legislative ban at the federal level in all 50 states. It seems hard to imagine this could happen given the consistent high level of polling support by Americans, but it only takes a couple more Supreme Court Justices who will then demonstrate right wing judicial activism by undoing 35 years of settled law represented by Roe.
This week, Republican presidential nominee Donald Trump spread falsehoods commonly used by conservatives suggesting the outcome of the presidential election might be affected by widespread fraud.
Speaking with the Washington Post’s Philip Rucker on Tuesday at the Trump National Golf Club, Trump tried to explain his repeated suggestion that the upcoming election has been “rigged” against him.
“I don’t like what’s going on with voter ID,” Trump said to Rucker, presumably referring to a string of recent court rulings in states across the country ruling against discriminatory voter identification laws. “I mean the voter ID situation has turned out to be a very unfair development. We may have people vote ten times. It’s inconceivable that you don’t have to show identification in order to vote or that that the identification doesn’t have to be somewhat foolproof.”
When Rucker tried to steer the conversation to discuss how the Republican nominee would handle a potential win by Hillary Clinton, Trump pivoted to again push that “there’s a lot of dirty pool played at the election, meaning the election is rigged.”
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“I would not be surprised. The voter ID, they’re fighting as hard as you can fight so that that they don’t have to show voter ID,” said Trump. “So, what’s the purpose of that? How many times is a person going to vote during the day?”
Trump is hardly the first Republican to make the argument. The 2016 GOP platform similarly claims that “voting procedures may be open to abuse. For this reason, we support legislation to require proof of citizenship when registering to vote and secure photo ID when voting.”
But wealthy white Republicans like Trump are not the people who have to worry about elections being stacked against them.
Trump made his comments the same week as the anniversary of the signing by President Lyndon B. Johnson of the Voting Rights Act (VRA) of 1965, a law designed to ensure that states did not pass laws specifically to prevent Black voters from accessing the ballot box. In Shelby County v. Holder,however, the U.S.Supreme Court in 2013 gutted key sections of the act, eliminating the requirement that the U.S.Department of Justice (DOJ) “pre-clear” laws passed by states with a history of voter discrimination andleading to the passage of voting restrictions throughout the country.
The protections offered by the VRA “used to require jurisdictions with the most troubling histories of discrimination to run new voting rules by the Justice Department or a federal court before those rules could be implemented,” explained Vanita Gupta, the head of the Civil Rights Division at theDOJ, in an op-ed for the Washington Post on Monday. In those protections’ absence, states were able to push through measures that disproportionately disenfranchised communities of color, those with low incomes, and the elderly.
Though the laws can be challenged—and many have been, such as those recently overturned by courts in North Carolina and Texas—the cases ”can take years to litigate” and “elections don’t stop in the meantime,” wrote Gupta.
As they have begun overturning these restrictions, some courts, such as the Fourth Circuit concerning North Carolina’s law, have noted the discriminatory nature of the laws that are made to “impose cures for problems that did not exist,” such as voter fraud.
Similarly, in Wisconsin, U.S. District Judge James Peterson wrote in his decision striking down a stringent voter ID law, “The Wisconsin experience demonstrates that a preoccupation with mostly phantom election fraud leads to real incidents of disenfranchisement, which undermine rather than enhance confidence in elections, particularly in minority communities.”
“To put it bluntly, Wisconsin’s strict version of voter ID law is a cure worse than the disease,” Peterson continued.
That’s because, as the Nation’s Ari Berman, who covers voting rights, pointed out during a recent appearance on Democracy Now!, “You’re more likely to be struck by lightning than you are to impersonate another voter.”
“Trump’s remark [about people voting ten times] is both irresponsible and completely off-mark,” Allegra Chapman, director of voting and elections at Common Cause—a nonpartisan organization “dedicated to upholding the core values of American democracy”—told Rewire via email Wednesday. “Several studies have been conducted across the country showing that in-person voting fraud is exceedingly rare. It just doesn’t happen on a basis that’s any way significant. Photo ID laws are a cure to a problem that doesn’t exist; we heard the courts say that in both” Wisconsin and Texas cases.
“Trump’s remarks bear zero resemblance to facts on the ground. It’s political bloviating,” added Chapman.
Brennan Center for Justice President Michael Waldman similarly dismissed Trump’s suggestion in a statement posted to the organization’s website. “When courts across the country step up to protect voting rights, that hardly amounts to ‘rigging’ an election,” said Waldman. “The notion of massive fraud is a pernicious myth. It’s irresponsible to peddle it if the goal is to pre-undermine an election outcome.”
And as Rewire has previously reported, “study after study has found little to no evidence” of the existence of voter fraud. When Justin Levitt, a professor at the Loyola Law School, analyzed instances of voter fraud in 2014 for the Washington Post, he uncovered just 31 instances of it in the more than one billion ballots cast between the years 2000 and 2014.
Another layer of nonsense is added to both Trump’s statement and the party platform, given that many Republicans have been nothing but transparent about what their push for voter ID laws has really been about: suppressing the votes of those less likely to vote for their party. Take, for example, Rep. Glenn Grothman’s (R-WI) April admission that the state’s voter IDlaw could make “a difference” in electing members of his party.
As the Associated Press reported, the Republican nominee’s claims that the election could be “rigged” for his loss, “could be an effort by Trump to lay the groundwork of an excuse if he goes on to lose the general election.”
Roger Stone, a noted conspiracy theorist and Trump ally, also sounded the alarm that voter fraud could be at play in November and recommended that the Republican nominee start telling media outlets about it. “I think we have widespread voter fraud, but the first thing that Trump needs to do is begin talking about it constantly,” said Stone in an interview for conservative news outlet Breitbart. “He needs to say for example, today would be a perfect example: ‘I am leading in Florida. The polls all show it. If I lose Florida, we will know that there’s voter fraud. If there’s voter fraud, this election will be illegitimate, the election of the winner will be illegitimate, we will have a constitutional crisis, widespread civil disobedience, and the government will no longer be the government.’”
Stone went on to warn of impending chaos should Trump lose: “I think he’s gotta put them on notice that their inauguration will be a rhetorical, and when I mean civil disobedience, not violence, but it will be a bloodbath,” said Stone. “The government will be shut down if they attempt to steal this and swear Hillary in. No, we will not stand for it. We will not stand for it.”
But the real danger here may be in the threat to democracy presented by the claims of Trump and Stone. “If Trump protested the results of the election in this way after losing in November, he could exploit a potentially destructive strain in the electorate that would undermine public confidence in elections,” explained the New York Times’ Brendan Nyhan in a Friday article on the long-lasting dangers of Trump’s claim. “Even if he contests a loss, Mr. Trump will not undermine American democracy by himself. The institutions and norms of the system are strong enough to withstand such a challenge. But questioning the integrity of the electoral system could encourage other losing candidates to challenge their own defeats, creating the risk of a more serious crisis of legitimacy in the future.”
It is no longer acceptable—at least in theory—for state legislators to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word. The same goes for, as it turns out, voting rights.
It has been a good summer for reproductive rights advocates. A little over a month ago, the U.S. Supreme Court in Whole Woman’s Health v. Hellerstedt struck down two burdensome restrictions in a Texas omnibus anti-abortion law. The Court’s opinion was so data and fact-driven, it signaled to reproductive rights advocates that science and evidence had finally made a comeback in the courts, especially when it comes to laws that burden constitutional rights.
It is no longer acceptable—at least in theory—for state legislators to announce that a particular restriction advances an interest in women’s health and to expect courts and the public to take them at their word.
The same goes for, as it turns out, voting rights.
Conservative legislators across the country have been complaining about voter fraud for years. As soon as the U.S. Supreme Court gutted the Voting Rights Act in Shelby County v. Holderin 2013, states like Texas and North Carolina rushed to enact and implement legislation requiring voter identification, which disproportionately disenfranchised Black and Latino voters. And even though no state has been able to offer proof of any in-person voter fraud crisis—because no such crisis exists—that hasn’t stopped states from continuing to pass laws aimed at slaying the phantom voter fraud demons.
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But there has been a palpable momentum shift in the GOP’s war on voting: Voting rights advocates seem to be winning, with a little help from Whole Woman’s Health.
It may surprise you that Whole Woman’s Health has popped up in cases involving voter ID laws. But since Whole Woman’s Health’s victory in June, four states have seen their voter ID laws either weakened or eliminated entirely. Two of the decisions in those cases, Wisconsin’s and Texas’, specifically reference Whole Woman’s Health.
First, in Wisconsin, a district court judge cited Whole Woman’s Health in a decision weakening that state’s voter ID law. There, District Court Judge Lynn Adelman ruled that voters who were unable to obtain voter ID could still vote by signing an affidavit as to their identity. Wisconsin protested that the court’s affidavit fail-safe provision would undermine the integrity of Wisconsin’s elections, but offered no proof to back up its claim.
“The Supreme Court recently reiterated that where a state law burdens a constitutional right, the state must produce evidence supporting its claim that the burden is necessary to further the state’s claimed interests,” Adelman wrote, citing Whole Woman’s Health. Evidence. Not just baseless, transparently false claims about a law’s purpose, but evidence.
And in Texas, two Fifth Circuit Court of Appeals judges cited Whole Woman’s Health in a concurring opinion invalidating Texas’ voter ID law. Amazingly, even a full panel of the ultra-conservative Fifth Circuit Court of Appeals ruled that Texas’s voter ID law disproportionately burdened Black and Latino voters, and therefore violated the Voting Rights Act.
In a concurring opinion, Judge Stephen Higginson acknowledged that combating voter fraud and promoting voter confidence were legitimate state interests, but, he said,again citing Whole Woman’s Health, simply asserting those interests doesn’t immunize a voter ID law from all challenges.
“[A]s the Supreme Court recently reminded [us], that a state interest is legitimate does not necessarily mean courts should ignore evidence of whether a specific law advances that interest or imposes needless burdens,” he wrote for himself and Judge Gregg Costa.
The message from Wisconsin and Texas is clear: If a state is going to claim that a particular law is going to fix a particular problem, that state needs to prove it. Courts will not rubber-stamp laws that needlessly burden constitutional rights without actually doing anything to fix the problem they were supposedly enacted to fix. And that’s a noticeable shift stemming from Whole Woman’s Health.
Other crucial voting rights victories this month have, as Stephen Colbert might put it, a Whole Woman’s Healthiness about them.
In North Carolina, while Whole Woman’s Health was not featured in the the Circuit Court of Appeals’ defenestration of that state’s sweeping election law, you can certainly feel its presence.
North Carolina passed its sweeping law after requesting data that showed which voting mechanisms Black people used the most, and then eliminating those mechanisms. For example, the racial data the legislature received showed that Black voters disproportionately used early voting in 2008 and 2012. So, North Carolina eliminated the first week of early voting, shortening the total early voting period from 17 to ten days.
“Although the new provisions target African Americans with almost surgical precision,” Circuit Judge Diana Gribbon Motz wrote for a unanimous court, “they constitute inapt remedies for the problems assertedly justifying them and, in fact, impose cures for problems that did not exist.”
In other words, North Carolina’s voter ID provision was about as useful at combating voter fraud and promoting voter confidence as the admitting privileges and ambulatory surgical center provisions in Texas’ HB 2 were at promoting women’s health and safety: that is to say, not very useful at all.
In Michigan, District Court Judge Gershwin A. Drain expressed skepticism at Michigan Republicans’ rationale for banning straight-party voting. Michigan claimed that the prohibition would help “preserve the purity of elections,” and “guard against abuses of the elective franchise.” The state also argued that the law would demand that voters be more knowledgeable about candidates and would encourage voters to make selections based on criteria other than party affiliation.
But Michigan didn’t submit any evidence to prove its claims, and Judge Drain wasn’t buying it.
“Michigan has not demonstrated how straight-party voting has damaged, or could possibly damage, the ‘purity’ of the election process,” District Court Judge Gershwin A. Drain wrote. “There is nothing ‘impure’ or ‘disengaged’ about choosing to vote for every candidate affiliated with, for example, the Republican Party,” Drain continued.
“Moreover, the idea that voting one’s party reflects ignorance or disengagement is, ironically, disconnected from reality,” he continued. “Even if ‘disengaged’ voting was problematic—and it is not—the Court finds that [the law] does nothing to encourage voters to be any more ‘engaged.’”
In North Dakota, plaintiffs challenged a law that required voters to present certain forms of voter ID and that did not have a “fail safe” provision which would enable a person who did not have the required voter ID to vote, which had existed before the law’s implementation in 2013. Plaintiffs claimed that the law severely burdened the Native American population in North Dakota, and submitted affidavits, studies, surveys, and other data in order to prove it. In response, North Dakota submitted nothing—not a shred of evidence that would back up its claim that the voter ID law was necessary to combat voter fraud.
Nothing wasn’t enough for Judge Daniel L. Hovland, who blocked the law.
“The undisputed evidence before the Court reveals that overcoming these obstacles can be difficult, particularly for an impoverished Native American,” he wrote.
Recognizing North Dakota had a valid interest in preventing voter fraud and promoting voter confidence, Hovland ruled that “those interests would not be undermined by allowing Native American voters, or any other voters who cannot obtain an ID, to present an affidavit or declaration in lieu of one of the four forms of permissible voter IDs.”
“No eligible voter, regardless of their station in life, should be denied the opportunity to vote,” Hovland said.
The losses suffered by Republican-dominated legislatures in Wisconsin, North Carolina, Michigan, and North Dakota, combined with federal court decisions striking down other voter restrictions in Kansas and Ohio (both decisions pre-date Whole Woman’s Health but certainly fit into a post-Whole Woman’s Health zeitgeist) suggests that judges are, as Mark Joseph Stern put it in Slate, “fed up with being treated like dolts by Republican legislators who lie through their teeth about the intent of draconian voting restrictions.”
Whole Woman’s Health has provided those irritated judges extra ammunition to shoot down unnecessary voter ID laws.
In a post-Whole Woman’s Health world, courts do not have to simply accept whatever lies a legislature decides to tell as “legislative fact.” If when a legislature says “to promote women’s health and safety,” it is nevertheless apparent that it means “to reduce abortion access,” then that law will not, as Justice Ruth Bader Ginsburg put it in her two-paragraph Whole Woman’s Health concurrence, survive judicial inspection.
The same can be said of voting rights. Courts do not have to accept “to preserve the integrity of elections” as an explanation when the obvious goal is “to keep people of color from voting.”
States can still say anything. But now, it’s more likely that they’ll have to prove it.