02/24/2013 10:24 pm ET Updated Dec 06, 2017

BOTH SIDES NOW : Do Republican Legislators and Justices Oppose the Right to Vote?

By Mark Green

An issue that literally defines Democracy is again roiling America -- voting. After the tragedy of a Civil War -- and the expensive lessons of the suffragette and civil rights movements -- the arc of history seemed to be bending toward universal voting. Yet now a debate has broken out between those who fear voter fraud and those who see voter suppression. President Obama is creating a bi-partisan commission to study these issues. And the Supreme Court will hear arguments this week whether it should gut the '65 Voting Rights Act since racial discrimination in the South is no worse than elsewhere. (Factoid: 40 percent of white Americans voted for Obama; 10 percent of white Southerners.)


Then, in scenes seemingly ripped out of House of Cards, scandals envelope Messers Jackson, Jr. and Menendez. The former displayed jaw-dropping greed but did the latter just lose his balance on the slippery slope of pols helping pals?

On ID Laws & Obama's Commission. Ron Reagan says that we can view the current wrangling either through the lens of whose ox is gored -- do D's or R's benefit from a particular change in laws? -- or through the lens of whether it advances or retards democracy. He's troubled by a GOP pushing Voter ID laws since "there's just no evidence that voter impersonation really exists," perhaps because it's nuts to risk a felony for one vote. Also, he liked the, well, Reaganesque touch of Obama pointing to Desiline Victor at the SOTU, the 102 year-old made to wait three hours to vote in Florida.

Mary chastises Obama's proposed bi-partisan commission to study the long lines of 2012. "It's a typical liberal exaggeration to imply there were six-hour lines when the average was 15 minutes," she also objects to a centralized, federal response to some anecdotal complaints about state election law procedures and to implications the problem is racial. The problem is not race or suppression -- "people aren't voting because they see candidates fail to keep their promises which creates cynicism."

No and yes, responds Ron. He points to Republican leaders in Pennsylvania and Florida admitting they had the racial motive of keeping down the "urban" vote and challenges Mary to support a law simply requiring states to automatically send all eligible voters valid ID documentation. She doesn't object but worries that wouldn't solve the problems of absentee and provisional ballots. Ron, however, does agree that Obama's commission seems largely a way to do nothing about voter reform now.

Host: On a 'both sides' perspective: it's true that Obama could have just backed one of the existing "voter empowerment" bills of Rep. John Lewis or Senator Gillibrand -- for early voting, more machines in populated areas, a computerized system registering and tracking everyone over 18. But since unregistered voters poll 3-1 Democratic, Republicans aren't very enthusiastic about these proposals. Rather than jam a calendar busy with sequester, gun violence and immigration, a bi-partisan commission can both educate the public and build up some GOP support for the long haul. It took 72 years from Seneca Falls to the 19th Amendment.

On GOP motives. J. P. Morgan once said that "a man always has two reasons for what he does -- a good one and the real one." In the same vein, a local California law against hanging cloths on backyard laundry lines was ruled unconstitutional in 1896 (Yick Wo) because, though purportedly race-neutral, it targeted Chinese immigrants. Since currently a) more black and young voters lack drivers license photo IDs, b) only GOP states pushed for voter ID laws, c) studies of 2012 document that urban Black and Democratic voters waited twice as long in line, and d) 200,000 Florida voters largely in urban areas left long lines without voting - or 400,000 times the 537 vote margin that Bush won the state and the presidency -- the GOP appears to be hanging some targeted voters out to dry.

On Altering the Electoral College. The panelists debate two serious proposals to significantly change the Electoral College without resorting to a constitutional amendment.

Several Republican governors and legislators (in Michigan, Pennsylvania, Wisconsin and Virginia...) are pushing for state laws to allocate electors not by popular vote but by congressional district. In Michigan, for one example, while Obama won 54 percent of the vote and captured all 16 electors under the traditional winner-takes-all rule, a one-acre/one-vote rule would have given nine electors to Romney and only seven to Obama. If these states had such a rule in 2012, Mitt Romney, who lost by 5 million votes nationally, would have been elected president!

Neither panelist supports such a version of "presidential gerrymandering," or what even the New York Post has called "rigging the vote." Mary worries that focusing on safe congressional districts produces "no ideas" candidates and winners because there's no competition. (And if there are now contentious fights over district lines to elect one more congressperson, imagine if at stake was also electing the president.) Ron blasts those who complain about cities having too much influence nationally since what they mean is population centers -- and it's odd that this proposal has arisen after Obama got elected twice and Republicans had lost five of six national presidential votes.

Both then express sympathy for a National Popular Vote that would effectively elect presidents based on the national vote (via an interstate compact among states with at least 270 electoral votes). Mary though argues that the Framers rejected this approach because of their views of state sovereignty (actually because of the Connecticut Compromise to get smaller states to ratify the Constitution).

On Supreme Court consideration of the '65 VRA. Although the Court three years ago upheld the Voting Rights Act 8-1, it this week is hearing arguments about the famous Section Five that requires nine Old South states (and a few Northern counties) to pre-clear any election law changes because of a history of discrimination against minority voters. So instead of putting the burden on alleged individual victims case-by-case to prove discrimination, it puts the burden on the state to argue that the law is not discriminatory. Mary thinks that it's wrong to now pick on the South since its race relations have been fine -- or, as Chief Justice Roberts concluded in 2009, "the South has changed." Since black and white turnout is nearly even, is it time to declare mission accomplished? She also advocates for one standard nationally since the problem of non-voting, again, is not race but cynicism toward all politicians.

Ron, hopes they'll uphold the law given the anti-minority schemes of 2012 even if they're less blatant than poll taxes or quizzes of only African-Americans; he worries, however, that the five conservative justices, who overturned a century of campaign finance limits, will also end this core voting rights law.

Host: elected Republicans have a well-known problem with minority voters. If they keep pushing for laws that make it harder for urban populations to vote in order to deter the unicorn of voter fraud - and if the five Republican-appointed justices also overturn Section 5 of the Voting Rights Act -- their political problem with Black and Latino voters will only worsen.

On Quick Takes. Rep. Jackson, Sen. Menendez, Oscars. If Congress was unpopular before this week, the trial and tribulation, respectively of Jackson Jackson Jr. and Bob Menendez, didn't help.

Everyone is repulsed by Rep. Jackson's obvious criminal conduct and agree that it's more aberrational than typical. Senator Menendez is different. He's neither been charged nor convicted of anything, though the Senate Ethics Committee is investigating his repeated interventions in federal agencies on behalf of large donors, whose private planes he would then ride. But since most electeds go to bat for friends and donors, how can the Senate or courts determine that only Menendez was engaged in illegal quid pro quos? Mary agrees that the slippery slope is a problem but concludes that the "magnitude" of his interventions were unusually sleazy and suspect.

As for the Oscars, the panelist who is the son of the former president... of the Screen Actors Guild... confidently opines that early frontrunners can lose out to cinematic underdogs. So though Mary loves and would vote for Argo, Ron basically thinks that film had mediocre character development but that, in effect, Lincoln peaked in 1865, too soon for its Oscar prospects.

Mark Green is the creator and host of Both Sides Now.

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