United States Court of Appeals For The Fourth Circuit

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Mike Schilling

Mike has been a software engineer far longer than he would like to admit. He has strong opinions on baseball, software, science fiction, comedy, contract bridge, and European history, any of which he's willing to share with almost no prompting whatsoever.

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62 Responses

  1. Avatar LeeEsq says:

    I thought this was supposed to be about ethics in gamer journalism. 😉Report

  2. Avatar notme says:

    How terrible that folks might have to show ID to vote.Report

    • Avatar Kazzy in reply to notme says:

      Spoken like someone who didn’t read the article.Report

    • Avatar Stillwater in reply to notme says:

      From the ruling:

      Using race as a proxy for party may be an effective way to win an election. But intentionally targeting a particular race’s access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose. This is so even absent any evidence of race-based hatred and despite the obvious political dynamics.

      ….

      Thus, we do not ask whether the State has an interest in preventing voter fraud — it does — or whether a photo ID requirement constitutes one way to serve that interest — it may — but whether the legislature would have enacted SL 2013-381’s photo ID requirement if it had no disproportionate impact on African American voters. The record evidence establishes that it would not have. Report

      • Avatar Kolohe in reply to Stillwater says:

        Everyone whined when Republicans governed “from the gut”. Now, Republicans are using data and analysis for legislation, and everyone is still complaining!Report

        • Avatar Mike Schilling in reply to Kolohe says:

          At least they’re not Hillary.Report

          • Avatar Kolohe in reply to Mike Schilling says:

            Clinton knows how to get rid of an incriminating paper trail. Or not have one to begin with.Report

            • Avatar Stillwater in reply to Kolohe says:

              Clinton’s actions around Emailgate – the runup, the implementation, the fallout and damage control – are absolutely astounding and defy any reasonably straightforward account. Even on the assumption she did nothing wrong, I cannot comprehend why a person with aspirations for higher office (or respect for the currently held one) would act with such politically reckless disregard of convention and political consequence. And that’s on the assumption she did nothing wrong. It only gets worse from there.Report

              • Avatar Morat20 in reply to Stillwater says:

                I cannot comprehend why a person with aspirations for higher office (or respect for the currently held one) would act with such politically reckless disregard of convention and political consequence

                I’m going to remind you that her immediate predecessor used yahoo mail so I think “disregard of convention” is a little strong.Report

              • Avatar Stillwater in reply to Morat20 says:

                Morat, conventions aren’t determined by what Powell did, they’re determined by agency protocols. Here are some of the conventions I’m talking about from the Inspector General report:

                – as of 2004 the protocol was to record all materials into the Department’s files (something she claimed she did by responding to department-generated emails, which is just absurd)

                – 2005 bulletin requires that all materials must remain in the custody of agencies for record keeping purposes including those generated on personal computers

                – 2009 CFR provision specifically says that in agencies which allow for the use of private servers all materials must be preserved IN the agency’s record keeping system

                – “At a minimum, Secretary Clinton should have surrendered all emails dealing with Department business before leaving government service and, because she did not do so, she did not comply with the Department’s policies that were implemented in accordance with the Federal Records Act”. She waited 21 months to do so and even then didn’t turn over all of them.

                – Then she wiped her computer with a cloth.Report

              • Avatar Morat20 in reply to Stillwater says:

                <blockquoteconventions aren’t determined by what Powell did,
                I suppose you could, if you want to assume your conclusion. However, I think “How did the person who held the job right before her handle it” is a perfectly valid way of determining what was, and was not, conventional practice for SoS.

                I realize that’s a pretty awkward data point you have to avoid acknowledging there. especially given Powell’s response to a FOIA on his emails was to say “None, because I deleted them all”.

                You can come back and argue “convention” once Powell’s multi-million dollar investigation is done, mkay?

                as of 2004 the protocol was to record all materials into the Department’s files (something she claimed she did by responding to department-generated emails, which is just absurd)

                Um, you do realize how that works? Any department generated email sent to her private server, if she responded, would get archived on the generation side with her name attached.

                The bulk of her email was already archived State side because it was generated State side. Any email sent to her from a government email address or sent from her TO a government email address was archived by the system automatically.

                The only emails that weren’t archived automatically by State involving her would be emails sent to her from a non-State system, the bulk of which would be personal.

                I’d be curious as to how many of the 30,000 emails she turned over already existed in State’s own archives. I would suspect the answer is “almost all of them”. (Certainly the ones with the confidential information, since from what I’ve read each and every one was sent to her via State employees and their own State accounts).

                She waited 21 months to do so and even then didn’t turn over all of them.

                Um, yeah she did. Even Comey said the ones they found she didn’t turn over seemed to be inadvertent. The FBI had the benefit of scouring all of her records, all of State’s, and reading them all by hand. rather than using the (completely legitimate, btw) method of sorting by address and keyword searches when compiling records.Report

              • Avatar Stillwater in reply to Morat20 says:

                Let’s back up a bit, Morat, and consider this question: Is there an appearance of impropriety regarding Clinton’s SoS email account and her subsequent comments about it?

                If you answer “no” then there’s nothing more for us to talk about since my criticism is entirely focused on the politics/procedural side of matter.Report

              • Avatar Morat20 in reply to Stillwater says:

                Let’s back it up further, to Colin Powell.

                Colin Powell did the exact same thing, only worse. He trusted his email to a third party free email solution, where had no control over security, administrative access, etc.

                He then deleted every email from his tenure as SoS in response to a FOIA request.

                Clinton, on the other hand, also used private email — but with security in mind, using a private server whose security and administrative access was controlled by her staff. She responded to a FOIA request completely.

                Yet her actions are scandalous and Powell’s are…ignored or dismissed. Hers warranted an FBI investigation and his did not.

                There’s only three real differences: Her gender, her political party, and her personally.

                When and if Powell gets as thorough an FBI investigation and a as complete a public airing of his decisions regarding email as Secretary of State, I’d be willing to take a closer look.

                Until then, when two people do exactly the same thing, and one gets castigated for it and the other has it slide, then the issue isn’t WHAT they did — it’s who they are.

                Their gender, their politics, their name.

                And you know it as well as I.

                Let me know when you’re ready to spill electrons by the gallon to talk about Powell’s “appearance of impropriety. And before you respond “He’s not running for higher office” DO let me know why something is proper or improper entirely based on future actions that are unconnected to the action at hand.Report

              • Avatar Stillwater in reply to Morat20 says:

                Let’s back it up even further, to Nixon. Kissinger, as far as I know, never recorded ANY emails into the department system. So I guess you have a point. Damn the lot of em.Report

              • Avatar Morat20 in reply to Stillwater says:

                Yeah, keep avoiding the point.

                Why are you focusing on Clinton and not Powell? Why was there an investigation of Clinton and not Powell? Why is what Clinton did beyond the pale, deplorable, and worthy of endless barrels of ink — but Powell is a footnote.

                And why is it you, with a straight face, can call continuing the methods of your predecessor unconventional?

                I realize you don’t want to admit that this is only a thing because it’s Hillary Clinton. If it was anyone else, there would have been no investigation, no endless theorizing and debate, no countless hours of discussion or Congressional hearings. It’d have been a backpage story that ended with “And then she turned over 30,000 emails in accordance with FOIA requests”.

                It’s not even well hidden blatant partisanship. You have the most clear-cut possible case where two people are treated MASSIVELY different for the same action.

                Same job, one immediately prior to the other. And the person getting off without even a raised eyebrow is the one who was objectively worse at all the things you’re hemming and hawing over.Report

              • Avatar Stillwater in reply to Morat20 says:

                Morat,

                And why is it you, with a straight face, can call continuing the methods of your predecessor unconventional?

                Her predecessor wasn’t Powell, it was Rice. And Rice used the official state department server for official communications.Report

              • Avatar Morat20 in reply to Stillwater says:

                Classified Data Found in Personal Email of Colin Powell and Aides to Condoleezza Rice

                The State Department has discovered a dozen emails containing classified information that were sent to the personal email accounts of Colin L. Powell and close aides of Condoleezza Rice during their tenures as secretaries of state for President George W. Bush.

                Two emails were sent to Mr. Powell’s personal account, and 10 to personal accounts of Ms. Rice’s senior aides. Those emails have now been classified as “confidential” or “secret” as part of a review process that has resulted in similar “upgrades” of information sent through the personal email server that Hillary Clinton used while she was secretary of state from 2009 to 2013. The State Department did not say who sent the emails to Mr. Powell or to Ms. Rice’s aides, or who received the messages.
                […]
                Ms. Rice, now at the Hoover Institution at Stanford University, was not available to comment, but her chief of staff, Georgia D. Godfrey, said that she did not use email or have a personal email account while secretary.

                Keep digging! You’ll get out of the hole eventually!Report

              • Avatar Stillwater in reply to Morat20 says:

                There seems to be some dispute about the last bit. From WSJ:

                “An aide to Ms. Rice said Tuesday that when she was secretary of state, Ms. Rice had a state.gov email address that she occasionally used, but not very often, and that she didn’t use a personal email address for any State Department business.”Report

              • Avatar Barry DeCicco in reply to Morat20 says:

                “I’m going to remind you that her immediate predecessor used yahoo mail so I think “disregard of convention” is a little strong.”

                And one of his co-workers, a guy by the name of Karl Rove, turned out to be conducting business using an e-mail server run by the RNC.

                21 million e-mails ‘committed suicide’ rather than face a judge.Report

              • Avatar Stillwater in reply to Barry DeCicco says:

                Barry,

                SheeshamightyChristo, I completely forgot about that scandal. Thanks for the reminder. It was a Big Deal back in the day.

                For transparency folks anyway.Report

        • Avatar Saul Degraw in reply to Kolohe says:

          Umm. I think they are complaining about what they are using the data for….Report

  3. Avatar Saul Degraw says:

    Voting ID laws in Texas and Wisconsin were also struck down for similar reasons.

    It is almost like the GOP legislatures that passed these laws knew they were dealing with changing demographics that did not favor them and decided to disenfranchise voters instead of changing their messages.Report

    • I guess I’m surprised that none of these states took the steps that got Indiana’s statute by the SCOTUS in Crawford v. Marion County Election Board: the cost of the ID was zero, and there was an affidavit “out” for people who had more than the usual problems with documentation. Indiana also provides another out for the elderly (65 or over) in the form of absentee-by-mail, which does not require a photo ID. In Crawford, I was struck by the results at trial where plaintiffs couldn’t come up with any witnesses that couldn’t meet the state’s requirements (given that “out”), and the state couldn’t come up with any instances of fraud that the ID requirement would have prevented.Report

      • Avatar Saul Degraw in reply to Michael Cain says:

        In this case Indiana had a more sane breed of Republican.

        Pence and Quayle excepted.Report

      • Avatar Stillwater in reply to Michael Cain says:

        Michael,

        I wonder to what extent the difference in decisions is a result of the different challenges to each state’s legislation. Eg, Crawford appears to have been argued on the basis of voter fraud considerations (which Judge Motz concedes have merit), while the North Carolina legislation was argued on discrimination grounds. I’d like to hear more about this case from our lawyers, but it seems to me the Fourth circuit decision opens up challenges to ID-requirement laws on a fundamentally different grounding, one which re-establishes (to some extent) the provisions ostensibly governed by section 5 of the CRA.

        Add: Perhaps the way to phrase my question is this: had the challenge to NC voter ID laws been limited to considerations of voter fraud, would the state’s argument have prevailed?Report

      • If their actual goal had been ending voter fraud, they could have taken those steps. I think that’s the whole point.Report

        • Avatar Stillwater in reply to Mike Schilling says:

          Did Indiana actually demonstrate (with evidence) that vote fraud was a significant enough problem to warrant a change in procedure? Or was the argument – which seems to me to be the case – that states have the right to determine the their own election-based procedures and policies? Scalia, for example, wrote that “It is for state legislatures to weigh the costs and benefits of possible changes to their election codes, and their judgment must prevail unless it imposes a severe and unjustified overall burden upon the right to vote, or is intended to disadvantage a particular class.”

          Which strikes me as a purely jurisdictional argument.Report

          • Avatar pillsy in reply to Stillwater says:

            I think the argument that, “This measure is a non-solution to a non-problem,” is vastly less damning if the measure itself isn’t burdensome and discriminatory.Report

          • As far as I know, states have complete jurisdiction over election procedures, and the only grounds for appeal is harm. [1] What makes this case a slam-dunk is the evidence of intent to create a disadvantage.

            1. Or, in 2000, the wrong guy winning.Report

            • Avatar Stillwater in reply to Mike Schilling says:

              Granted. I’m talking about a shift in the way the court considers this stuff. When Crawford was argued, the absence of an affirmative argument justifying the ostensible purpose of Indiana voter ID laws was discounted as irrelevant since state’s were accorded wide latitude to determine election procedures n the absence of clearly articulated harm. The Fourth Circuit, on the other hand, determined that given that partisan affiliation is highly correlated with race voter ID laws must meet a burden of justification. I think that’s a shift, myself, and one which is consistent with the now gutted sections of the CRA.

              The North Carolina govna said he’d appeal the case, so we’ll potentially see how the SC views the matter in light of argument’s presented by the Fourth.Report

        • Avatar Barry DeCicco in reply to Mike Schilling says:

          “If their actual goal had been ending voter fraud, they could have taken those steps. I think that’s the whole point.”

          Since (from what I’ve gathered) these laws don’t seem to be concerned about absentee ballots, they raise obvious questions….Report

          • Avatar Stillwater in reply to Barry DeCicco says:

            To that point:

            The article presents research that shows more than a thousand persons went to the polls and cast a provisional ballot due to a lack of valid identification and that the vast majority of those provisional ballots went uncounted. Thus, this research helps fill a gap in the plaintiffs’ case in Crawford v. Marion County Election Bd, 128 S. Ct. 1610 (2008) where the plaintiffs challenging photo identification were criticized for their failure to generate firm evidence of disfranchisement.

            That’s – presumably! – real evidence.Report

      • Avatar Will H. in reply to Michael Cain says:

        the state couldn’t come up with any instances of fraud that the ID requirement would have prevented.

        I think if they were required to come up with evidence of fires that fire extinguishers could have prevented, they would be at a loss as well; though that fact does little to undercut the prudence in maintaining up-to-date fire equipment.Report

        • Avatar Morat20 in reply to Will H. says:

          That’s kind of a broken analogy, though.

          Because the fire extinguishers they were mandating were in places that were incredibly difficult to light on fire, and also were maybe flammable?

          I dunno how to really make that analogy work for “You solved a problem that wasn’t happening, by making it more difficult for people to do the thing they were there to do, and the problem was not ‘this thing is too easy to do'”.

          It’s more like solving the problem of zoo exhibit that made it hard for visitors to see the animals by banning every other visitor from entering the zoo because now fewer people would complain about the view.Report

          • Avatar Will H. in reply to Morat20 says:

            Definitionally, successful fraud goes undetected.Report

            • Avatar Morat20 in reply to Will H. says:

              You can extrapolate from unsuccessful fraud — and also you can use basic reasoning skills to determine not just the success rates but the efficacy of such fraud.

              In-person voting fraud is both minimal return (you add one vote per success, when even close elections are generally thousands of votes apart), highly punished (felony with multiple years in jail), and easily caught in bulk.

              High risk, low-reward.

              Machine rigging, for instance — or absentee ballot stuffing — is still fairly high risk, but the rewards are much higher. You don’t need legions of people to show up and vote, for one.

              Basically put, in person fraud makes no sense as a method of fraud (even if successful, the odds of it making any difference are negligible). So it’s like placing fire extinguishers in a pool. I mean sure, some things burn under water. It’s possible it can happen.

              But to continue the analogy — how many arsonists try to burn down water?Report

        • Avatar Barry DeCicco in reply to Will H. says:

          “I think if they were required to come up with evidence of fires that fire extinguishers could have prevented, they would be at a loss as well; though that fact does little to undercut the prudence in maintaining up-to-date fire equipment.”

          Well no, since the evidence would have been available from *before* those shiny new oh-so-necessary laws were in force.Report

        • Avatar Mo in reply to Will H. says:

          @will-h Wait, what? I’m pretty sure it would take any local fire department of reasonable size about 10 minutes to come up with a handful. All the state would need to do is ask local fire chiefs.Report

  4. Avatar Saul Degraw says:

    So Trump responded to Khan’s speech at the DNC by engaging in some Muslim-bashing because the wife did not speak.

    At this point, I just need to think that the man is cruel and about 30-40 percent of the GOP base is needlessly cruel as well.Report

    • Avatar Kazzy in reply to Saul Degraw says:

      http://www.vox.com/2016/7/30/12332922/donald-trump-khan-muslim

      He’s a monster, through and through.

      Sadly, I think those commited to him can’t and won’t turn back. His biggest backers needed a champion and he provided it. He’s a dick but he’s their dick. And when you believe that your back is up against the wall, that the world is out to get you, and that you are the REAL victims, everything is fair game. Trumps backers believe they have been failed by everyone so everyone is a righteous target.Report

      • Avatar Saul Degraw in reply to Kazzy says:

        @kazzy

        I saw that article and the Fallows one.

        This is the more famous part of the Welch quote:

        “You’ve done enough. Have you no sense of decency, sir? At long last, have you left no sense of decency?”

        I feel like this quote applies well to Trump and unfortunately too many others.Report

  5. Avatar j r says:

    I’ve never felt much urge to jump into conversations about voter ID laws, because it’s so glaringly obvious that the folks behind these laws have no actual interest the integrity of elections. I’m sure there are enough people who really believe that there is widespread election fraud because they’ve been consuming a steady diet of there are dead people voting in Chicago/New Black Panther Party intimidation/Democratic party operatives are padding the roles in X number of ways. But most of that can be dispelled with a few minutes of Googling.

    If you’re defending these new voter ID laws at this point, it’s because you’re willfully ignorant or in on the scam.

    There is a wider observation. When activists do something, whether I agree or disagree, I tend to believe that they are primarily motivated by ideological reasons. But when politicians and partisan operatives do something, why would I believe that it is about anything buy the raw exercise of power? When the Republican Party moves to pass a bunch of laws making it harder for some folks to vote, it’s obvious to me that they’re doing it because they want to increase the share of voted going to Republicans. And when Democrats try to make sure that there is party-line voting available or try to eliminate non-partisan local elections, I assume that they trying to increase the number of votes going their way. It’s the same with gerrymandering. Why wouldn’t they behave this way? That’s how you win elections.

    It’s a game. One side moves to increase their power and the other side moves to check the first move. I get why it is the way that it is, but I have a hard time caring much about it because it is the way it is. But people keep telling me on Facebook that a vote for anything other than a D or an R is a meaningless and dangerous protest and an exercise in white privilege. So, guess those are the rules.Report

    • Avatar Kazzy in reply to j r says:

      This is an interesting take, @j-r . But I do believe you are engaging in some false equivalencies.

      Regardless of the motivation, moving to restrict or make it difficult for eligible voters to participate in elections causes a very real harm. Who is harmed by party-line voting? Anyone? If so, to the degree that people are harmed by being disenfranchised?

      That said, you raise another interesting question…

      Are Republicans aiming to pass voting regulations that disproportionately impact African-Americans because they’re mean racists who hate dark people? No. They’re doing it because, as you said, it increases the likelihood of them acquiring/maintaining power. But if the shoe were on the other foot… if it was Democrats who could stand to gain from limiting the voting rights of African-Americans, do we think they’d pursue these very same paths? My guts says no. Maybe for reasons related to perceptions and maybe for reasons related to principles, but I don’t think we’d see that happening.

      Perhaps to put it differently… instead of saying, “Republicans are obviously racist as evidenced by their voting regulation efforts,” what if we said, “If Republicans were committed to equality for all races, they wouldn’t pursue these regulations for any reason?”

      It is sort of the same thing but also sort of different.

      And, to be clear, I’ve said many times that I’d rather see as many people vote as possible and have “my side” lose an election than use this sort of gamesmanship to win. Maybe that’s idealism, maybe that’s privilege (Hey… what do I stand to really lose?), but situations like these are where I’m all about the veil of ignorance.Report

      • Avatar j r in reply to Kazzy says:

        But I do believe you are engaging in some false equivalencies.

        No. The only equivalency that I am making is that both parties do what they can to increase their share of the vote. The examples I gave are to support that claim, not an attempt to say anything about the relative wrongness of the examples. I do happen to believe that trying to disenfranchise voters is worse than trying to force partisan elections and party-line voting, but that wan’t the point that I was trying to make.

        But if the shoe were on the other foot… if it was Democrats who could stand to gain from limiting the voting rights of African-Americans, do we think they’d pursue these very same paths?

        This is a difficult question, because it involves not only counterfactuals, but a reimagination of what the current Democratic coalition would look like without blacks and what would force that sort of realignment. As a point of historical fact, when the shoe was on the other foot, the Democrats did the same and much much worse. And I can certainly think of an example or two of the contemporary incarnation of the Democratic Party throwing black interests under the bus for either pragmatic political reasons or for the purposes of maintaining progressive orthodoxy.

        The better question would be to ask if Democrats could limit voter participation of some group of working class whites who were likely to vote Republican, would they? I don’t know the answer to that question, but I’m certainly not ready to offer a definite “no.”Report

        • Avatar Chip Daniels in reply to j r says:

          The better question would be to ask if Democrats could limit voter participation of some group of working class whites who were likely to vote Republican, would they?

          Well don’t we have empirical evidence to evaluate this?

          Aren’t there states like New York and California where Democrats are solidly in power, and could easily limit the vote of any group that they wanted?

          The Democrats are convinced that their policies are popular, and believe that increased voting of any kind intrinsically favors them.

          The Republicans believe the opposite.Report

        • Avatar Kazzy in reply to j r says:

          @j-r

          My point wasn’t that Dems would never seek to disenfranchise. But by looking at who a given side is willing to disenfrachise and how much effort they put towards that, can we draw any conclusions about bias against or hostility towards those groups?

          There are lots of groups Republicans could target to improve their power. They chose Blacks. That has to say SOMETHING about their feelings towards Blacks, no? If only that they are more willing to harm them then other groups?Report

          • Avatar Tod Kelly in reply to Kazzy says:

            There are lots of groups Republicans could target to improve their power. They chose Blacks. That has to say SOMETHING about their feelings towards Blacks, no?

            It might.

            It might also say something about which groups of people, historically speaking, are the easiest to get away with s**ting on without having to pay much legal or political consequences. I am hard pressed to think of, at least in terms of the country’s rearview mirror, a minority for whom left/lib whites have simultaneously railed against real and/or perceived discrimination and been happy to let let that discrimination slide (or even participate in it).

            IOW, it might be more a case of choosing the path of least resistance than having an opinion one way or another about blacks.Report

            • Avatar Burt Likko in reply to Tod Kelly says:

              I concur in part and dissent in part, for chicken-and-egg reasons tracing back to the Great Nixon-Kennedy realignment of the 1960’s. It’s two generations later now, so distinguishing between invidious racism, cynical manipulation of the fact of racism of others, or simple partisanship is at the root of this particular effort.

              Not only is teasing out that distinction difficult, it’s also going to yield an ambiguous result, and it’s going to ultimately be arguing about angels dancing on the heads of pins for so long as there is a Voting Rights Act that judges will enforce.

              Using race as a proxy for the driver of partisanship in depress-the-vote political games means using race as the driver in depress-the-vote political games.Report

            • Avatar Kazzy in reply to Tod Kelly says:

              Interesting point, @tod-kelly .

              But part of the reason that is the past of least resistance is because the folks doing it seem to bear no guilt about doing it. Which circles back to their feelings about the group they are targeting. Guilt is a form of resistance.

              I mean, imagine if a path to electoral victory was a road full of puppies and you had to march down it in baseball spikes. When this path gets proposed, someone in the room probably pipes up and says, “Sheesh, guys… puppies? Really? I don’t know if I’m okay with that.”

              Did anyone in the room pipe up and say something similar when these laws were being drafted? If not, that is telling.

              Of course, we probably will never know the answer to that.Report

              • Avatar Stillwater in reply to Kazzy says:

                Kazzy, I don’t mean this as a criticism, since it’s clearly a typo, but I love the phrase “the past of least resistance.” The reason something didn’t happen is because it was just too dang hard.Report

          • Avatar j r in reply to Kazzy says:

            This is straying away from my original point, which I am hesitant to do mostly because I find conversations about which sides hates/loves black people more are not particularly useful. White supremacy pervades U.S. political thought, right, left and center. Full stop.

            At this moment in history, the forces of white supremacy are most evident on the right and that certainly affects this particular issue. Beyond that, I think Tod is correct in saying that it is really difficult to disentangle causality. For one thing, we are trying to make definitive statements about what large groups of people think, which is never very precise, even if it can be sometimes accurate.

            Also, it occurred to me not long after writing my last comment that we do have a rather telling analog on the DNC side in the form of the hacked emails. I spent some time on FB going back and forth with a Bernie supporter and I came to the conclusion that there is really no way to convince him that DWS and the DNC did not actively rig the election for Hillary. In fact, there is no evidence that the DNC actively did anything other than bat ideas back and forth, but it is safe to say that at least some members of the DNC staff had much more interest in promoting their preferred candidate and protecting the party brand than they did in leaving the outcome of the primary purely to whomever the primary voters chose. I don’t think that any of those staffers necessarily held animosity for Bernie supporters, but those staffers certainly had an overriding interest in limiting the power of the Bernie bloc.

            In an alternate timeline, in which Bernie looked to surge ahead of Hillary in votes and delegates, if there was some rule change or series of rule changes that the DNC could enact that would take away Bernie’s momentum, I have no problem believing that someone like DWS would have gone right ahead and done that. And she and other staffers and Hillary supporters would have had no problem finding some post-hoc rationalization for what they did. That’s just the way politics works.Report

    • Avatar Stillwater in reply to j r says:

      When activists do something, whether I agree or disagree, I tend to believe that they are primarily motivated by ideological reasons. But when politicians and partisan operatives do something, why would I believe that it is about anything buy the raw exercise of power?

      There’s surely a distinction between the two things (otherwise seemingly correct analyses like The Iron Law of Institutions wouldn’t make any sense) but I’m not sure the distinction holds in practice without begging questions. And specifically, this one: in a fully general sense realizing ideological commitments equates to having the power to implement policies consistent with that ideology. That’s especially true in a democracy, seems to me, but also applies to the ideological/power-aspiring residue which obtains in the purest conception of anarchism. So the desire to implement or realize ideological commitments can’t be cleanly divorced from attempts and exercises of pure power to implement or realize them. IOW, as long as power is a basic human impulse we’ll have power conflicts.

      Of course, for the most part I agree with your basic premise that voter-ID laws are transparent attempts to disenfranchise certain demographics from exercising the franchise. I disagree, however, that there is a clear distinction between ideology and the exercise of pure power (like The Iron Law for example). Seems to me political (or political economic) ideologies, in practice, cannot be divorced from power concepts. If we’re talking about the real world and humans as the complex beings they actually are, anyway.Report

      • Avatar Stillwater in reply to Stillwater says:

        HEre’s yet another way to say it: there’s an inextricable and huge overlap in interests served by the ideologically motivated desire to disenfranchise black folk and the self-interested desire of GOPers to retain power.Report

  6. Avatar Burt Likko says:

    The money quote is at the bottom of page 30 of the slip opinion:

    Using race as a proxy for party may be an effective way to win an election. But intentionally targeting a particular race’s access to the franchise because its members vote for a particular party, in a predictable manner, constitutes discriminatory purpose. This is so even absent any evidence of race-based hatred and despite the obvious political dynamics.

    By the time you read to this point, you can tell not only what the Fourth Circuit is going to rule, but why and how. Previous to this, it recited the record on appeal describing the N.C. Legislature’s enactment of the various “voting reforms,” and then recited a rubric for finding of discriminatory intent by a legislative body taken from a relatively housing rights case (which, IIRC, was a case I’d marked as a “keep your eye on this ball” in a previous SCOTUS docket summary on these very pages so it lets me toot my own horn for which I’m grateful).

    So if the case breaks substantially new legal ground, it’s here — importing the rubric of discriminatory legislative intent from the Arlington Heights case into a Voting Rights Act case and then undertaking a practical analysis of the political realities of the majority enacting the law. The North Carolina Republican Party is not mentioned by name, but is referred to directly along the lines of “the party that receives substantially no minority votes.”

    And the holding is going to be “North Carolina Republicans: we find that you chose to enact laws to depress black voter turnouts because blacks vote for Democrats rather than strictly because they’re black. But you nevertheless intended to depress black voter turnout, and guess what? That’s using the laws of the state to disenfranchise black people and that is NOT COOL.”

    Last night after we’d shared a libation or two, @mike-schilling predicted that SCOTUS in its current composition would vote 4-4 along “the usual lines” if and when this case goes on appeal (which at that point will be styled McCrory v. NAACP). That’s exactly right, I think with one caveat: there is a reasonable likelihood that there will be a ninth Justice by then. Elections, as we’ve been told, have consequences.Report

    • Avatar Stillwater in reply to Burt Likko says:

      So if the case breaks substantially new legal ground, it’s here

      I’m glad to hear you say that. I think it does, but I also think it’s an important improvement upon the reasoning by which Crawford, for example, was decided.Report

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