Today Senators Clinton, Boxer and Kerry, along with Rep. Stephanie Tubbs Jones, held a press conference to unveil an ambitious and very comprehensive election reform proposal, which they want enacted in time for the 2006 mid-term balloting. Thank God they moved quickly on this idea, instead of letting the memories of a second straight presidential election nearly winding up in the courts fade.The proposal itself is pretty far-reaching, including (1) making Election Day a federal holiday, (2) creating uniform rules for handling of provisional ballots, (3) requiring early voting opportunities, along with no-questions-asked absentee balloting, (4) boosting training for poll workers, (5) criminalizing voter intimidation tactics, (6) restoring voting rights for former felons, (7) requiring paper receipts for electronic voting machines, and (8) providing the federal funds to make sure this reform isn’t as shoddily impemented as its predecessor, the Help America Vote Act.The only quibble I have about the specifics of the proposal is that the sponsors should make sure to provide some leeway from the more prescriptive features of the bill for states with an exemplary record of fair and voter-friendly election administration. I’m thinking of Oregon, whose excellent administration of an all-mail-ballot system has produced remarkable voter turnout levels with virtually no complaints. And I’m also thinking of my home state of Georgia, where Secretary of State Cathy Cox (who may well be the Democratic candidate for governor in ’06) has done the best possible job of implementing a statewide touch-screen system. Yeah, I know, Diebold Conspiracy theorists don’t like that, but as Sam Rosenfeld recently explained in The American Prospect, Georgians seem to love the new system, and there have been no allegations of fraud or other irregularities there.The Diebold reference leads me to another point about election reform: Democrats need to go to considerable lengths to establish that this issue is not just about Democratic complaints concerning the outcome of the last two presidential elections, and that supporting election reform does not mean endorsing the views of those who believe the whole system has been completely rigged. Why? Because unlike a lot of Democratic proposals these days, this is one that we actually need to get enacted into law, because it will materially improve our chances of winning elections. And given the broad popularity of most of the election reforms contained in the new proposal, there is actually a fair chance that some if not most Republicans can be coerced, shamed or otherwise stampeded into going along. We definitely need to give it a shot, and keeping the message of election reform on a higher, nonpartisan, “good government” plane is essential to that task. If it doesn’t work, then fine, we can go after the GOP hammer-and-tongs at that point.Beyond that, I hope Democrats who embrace election reform are willing to link this issue to a broader political reform agenda: redistricting reform, lobbying reform, corporate subsidy reform, budget reform, ethics reform, and a recommitment to campaign finance reform. The current system ain’t benefitting Democrats, and ain’t benefitting the country, so we should throw caution to the wind and make it definitively clear that there’s little about the current system we are not willing to take a serious look at and, if appropriate, change.So: I enthusiastically applaud the sponsors of the Count Every Vote Act as trailblazers in what we can only hope will be a whole new theme in Democratic politics from Washington to every state and city. And I hope those bloggers who like to call themselves “Reform Democrats” will get specific about what that means and weigh in with what JFK used to call “great vigor.”
TDS Strategy Memos
Latest Research from:
By Ed Kilgore
In looking at Dobbs v. Jackson Women’s Health Organization from many angles at New York, one I noted was the lonely position of Chief Justice John Roberts, who failed to hold back his conservative colleagues from anti-abortion radicalism:
While the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization will go down in history as a 6-3 decision with only the three Democrat-appointed justices dissenting, Chief Justice John Roberts actually did not support a full reversal of Roe v. Wade and Planned Parenthood v. Casey. His concurring opinion, which argued that the Court should uphold Mississippi’s ban on abortions after 15 weeks of pregnancy without entirely abolishing a constitutional right to abortion, represented a path not taken by the other five conservative members of the Court.
When the Court held oral arguments on the Mississippi law last December, the conservative majority’s determination to redeem Donald Trump’s promise to reverse Roe v. Wade was quite clear. The only ray of hope was the clear discomfort of Chief Justice John Roberts, as New York’s Irin Carmon noted at the time:
“It seemed obvious that only Roberts, who vainly tried to focus on the 15-week line even when everyone else made clear it was all or nothing, cares for such appearances. There had been some pre-argument rumblings that Barrett and Brett Kavanaugh might defect, perhaps forming a bloc with Roberts to find some middle ground as happened the last time the Court considered overturning Roe in 1992’s Planned Parenthood v. Casey. On Wednesday, neither Barrett nor Kavanaugh seemed inclined to disappoint the movement that put them on the Court.”
Still, the Casey precedent offered a shred of hope, since in that 1992 case some hard and imaginative work by Republican-appointed justices determined not to overturn Roe eventually flipped Justice Anthony Kennedy and dealt a devastating blow to the anti-abortion movement. Just prior to the May leak of Justice Samuel Alito’s draft majority opinion (which was very similar in every important respect to the final product), the Wall Street Journal nervously speculated that Roberts might be undermining conservative resolve on the Court, or change sides as he famously did in the Obamacare case.
In the wake of the leak there was some reporting that Roberts was indeed determined not to go whole hog in Dobbs; one theory about the leak was that it had been engineered to freeze the other conservatives (especially Justice Brett Kavanaugh, who during his confirmation hearings had said many things incompatible with a decision to reverse Roe entirely) before the chief justice could lure them to his side.
Now it appears Roberts tried and failed. His concurrence was a not terribly compelling plea for “judicial restraint” that left him alone on the polarized Court he allegedly leads:
“I would take a more measured course. I agree with the Court that the viability line established by Roe and Casey should be discarded under a straightforward stare decisis analysis. That line never made any sense. Our abortion precedents describe the right at issue as a woman’s right to choose to terminate her pregnancy. That right should therefore extend far enough to ensure a reasonable opportunity to choose, but need not extend any further certainly not all the way to viability.”
Roberts’s proposed “reasonable opportunity” standard is apparently of his own invention, and is obviously vague enough to allow him to green-light any abortion ban short of one that outlaws abortion from the moment of fertilization, though he does seem to think arbitrarily drawing a new line at the beginning of the second trimester of pregnancy might work. Roberts’s real motivation appears to be upholding the Court’s reputation for judiciousness, which is indeed about to take a beating:
“The Court’s decision to overrule Roe and Casey is a serious jolt to the legal system — regardless of how you view those cases. A narrower decision rejecting the misguided viability line would be markedly less unsettling, and nothing more is needed to decide this case.”
In his majority opinion (joined by Justices Clarence Thomas, Neil Gorsuch, and Amy Coney Barrett, along with Kavanaugh) Alito seems to relish in mocking the unprincipled nature of the chief justice’s temporizing position:
“There are serious problems with this approach, and it is revealing that nothing like it was recommended by either party …
“The concurrence would do exactly what it criticizes Roe for doing: pulling “out of thin air” a test that “[n]o party or amicus asked the Court to adopt …
“The concurrence asserts that the viability line is separable from the constitutional right they recognized, and can therefore be “discarded” without disturbing any past precedent … That is simply incorrect.”
One has to wonder that if Merrick Garland had been allowed to join the Court in 2016, or if Amy Coney Barrett had not been rushed onto the Court in 2020, Robert’s split-the-differences approach eroding but not entirely abolishing the constitutional right to abortion might have carried the day in Dobbs. But that’s like speculating about where we would be had Donald Trump not become president in 2017 after promising conservatives the moon — and an end to Roe.