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Discussing voter disenfranchisement, Scott Lemieux writes, “It’s almost impossible to overstate how much this matters.” I agree. So today, I want to follow-up on Hilzoy’s excellent post on voter fraud with some thoughts of my own.

Our national voting system is a disgrace. And while sham “voter fraud” plays an important role, it’s only one slice of a much larger and more systemic problem. To understand the scope of the problem, you must first understand that voting consists of far more than merely showing up on Election Day. There are many different phases along the way – and vote suppression can and does occur at any one (or all) of these phases, from the registration process up through voting day.

Before I outline these different phases, I should say that almost all of the information in this post comes from the Brennan Center for Justice (NYU) and its tireless efforts to protect the vote and educate the public. In particular, today’s post relies on this powerpoint (pdf here), which was part of a larger Brennan Center presentation at an ACS event in DC last year (which was great).

As the powerpoint explains, there are five different methods that states are using (or could use) to suppress turnout of eligible voters: (1) restricting voter registration drives; (2) erecting barriers to getting on voter rolls; (3) purging existing voter rolls; (4) imposing voter ID and proof of citizenship requirements at the polls; and (5) failing to ensure electronic voting machine security. Note that these suppression efforts arise at different stages of the voting process, often months prior to Election Day.

#1 – Registration Drives. Some states’ restrictions on voter registration drives are so absurd and punitive that they are, frankly, hard to believe. According to the Brennan Center, these restrictions include imposing insanely high fines and even criminal penalties on voter registration groups for what are essentially administrative errors. In Florida, for instance, the legislature imposed the following fines on voter registration groups: (1) “$250 for each application submitted . . . more than ten days after the form was collected”; (2) “$500 for each application . . . submitted after the [registration] deadline”; (3) “$5,000 for each application collected but not submitted to election officials.” These potential penalties obviously make people think twice about initiating, or participating in, voter registration efforts.

The Brennan Center has documented similar efforts in other states. In Ohio, individual registration volunteers had to personally turn in the forms they collected. In other words, they couldn’t hand them to a supervisor to be turned in collectively. They had to walk them to the office themselves. In New Mexico, they went a step further. There, “groups are given only 48 hours to submit the forms they collect to the state board of elections or face criminal charges.”

The effects are obvious. States are either making voter registration efforts extremely risky, or are increasing their administrative costs. The net result is less voter registration. And again, all this happens well before Election Day and outside the (watchful, Sauron-like) eye of the media.

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In this column, Dahlia Lithwick explores one of the most fascinating sidebars to the U.S. Attorney scandal — religion and the DOJ. Using Monica Goodling as an example, she documents how deeply Regent University Law School graduates have penetrated the upper echelons of the Bush administration. Like Lithwick, I don’t have a problem with the administration hiring Regent grads (assuming they’re qualified). In fact, I’ve worked with outstanding attorneys who graduated from Regent.

What interests me then is not so much why DOJ hired Regent grads, but why Regent grads like Monica Goodling acted like they did. In particular, it’s the psychological and sociological dimensions that intrigue me. How did someone like Goodling justify her actions in her own mind? How did she square them with her religious faith? [For what it’s worth, these questions extend well beyond Goodling. How (and why), for instance, do so many social conservatives tolerate and even applaud our detention “policy” and war and unprogressive tax structures and so on?]

With respect to the more narrow Goodling question, Lithwick proposes an answer — people like Goodling started mistaking Bush for God. She writes, “[T]he real concern here is that Goodling and her ilk somehow began to conflate God’s work with the president’s.” While that’s true in a sense, I don’t think it goes far enough. Assuming Lithwick is right, the more fundamental question is how Goodling (and other evangelicals) got to that point in the first place.

To take a step back, although liberals are not hostile to religion, I do think that they — in their own minds anyway — often conceptualize evangelical Christians in very simple ways. People get these visions of brainwashed automatons marching to the beat of Dobson and his P-Funk All-Stars. The truth is, though, that social conservatives — like all other groups — have a unique and complex psychology. And in their own mind, they (like everyone else) think of themselves as good people doing good things. That’s why it’s interesting to explore the specific rationalizations they use to justify actions that are hypocritical in light of their religious faith.

The first rationalization relates to our old friend, liberal hatred. I believe that evangelicals like Goodling are not so much pro-Republican as they are deeply, and even pathologically, anti-liberal. In this sense, Goodling represents the political coming-of-age of a generation of young social conservatives that has been taught from childhood to hate “the Left.” And it’s not just that the Left is bad, it’s that the Left is constantly attacking them from all directions — e.g., the courts, the media, Hollywood, academia, etc. It’s all one big attack. I mean, Regent University is premised on the notion that Christians are under attack. (The Federalist Society was too – check out their mission statement).

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I need some help. I’m having trouble discerning a thesis in George Will’s tirade today against the ERA. The argument seems to go like this: (1) Liberals like bell bottoms and love beads [cue Stayin’ Alive bass line]. (2) The ERA is bad because it duplicates the equal protection clause (Will’s favorite constitutional provision no doubt). (3) Hairy, bell-bottomed, love-beaded ERA-supporting hippies cheated back in the 70s. [Well, you can tell by the way I use my walk . . .] (4) The ERA is bad because it’s an end run around the legislative process. As #4 is the most ridiculous part of a fairly ridiculous op-ed, let’s start with that one.

The Will column is a textbook example of how conceptual narratives can harden to the point where facts become irrelevant. Remember that one of the central (and sometimes accurate) arguments of modern conservative jurisprudence is that post-World War II liberals use vague constitutional doctrine to do an end run around the legislative process. Inevitably, conservatives argue that if liberals want to change the Constitution, they need to do so through the proper channels – i.e., the Article V amendment process.

Funny thing, though. That’s exactly what the renewed effort to pass the ERA is trying to do. But to Will, these efforts are merely an even-more-cleverer way to avoid legislatures:

All amendments generate litigation, but the ERA’s purpose is to generate litigation. It is a device to get courts to impose social policies that supporters of the policies cannot persuade legislatures to enact. ERA — now WEA — supporters, being politically lazy, prefer the shortcut of litigation to the patient politics necessary to pass legislation.

If Kennedy and like-minded legislators think that the condition of American women needs improvements, they should try to legislate them. Instead, they prefer to hope that liberal judges will regard the ERA’s language as a license to legislate.
To sum up, commanding legislative supermajorities at the federal and state level in the manner explicitly provided for by Article V is a “politically lazy” “shortcut.” What legislators who want to help women should really do, Will explains, is to “try to legislate” rather than, you know, legislating.

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Mark Cuban’s prophecies came true last week as Viacom sued YouTube (Google) for a cool billion for copyright infringement. In response, some smart people like Lessig and Harold Feld (of Public Knowledge) are blaming the Viacom suit in part on the Supreme Court’s Grokster decision. I generally agree with that argument, but for somewhat different reasons. As I explained when Grokster came down, the case is a classic example of what happens when legal decisions become divorced from real world considerations.

First, some background. Prior to Grokster, the seminal Supreme Court case was Sony v. Universal City Studios (1984), which addressed Sony’s potential copyright liability for its newfangled VCR. Like Grokster, Sony involved the issue of secondary liability. Because the “primary” infringers were VCR users taping Miami Vice and Knots Landing, the issue was whether Sony could be “secondarily” liable for distributing the technology ultimately used for infringement. The Court said no, reasoning that the VCR was “capable of commercially significant noninfringing uses.” In other words, you could use it for good reasons too. Thanks to this decision, we have the video rental market.

Fast forward to 2005. As any sentient being would concede, Grokster was facilitating and promoting massive copyright infringement. The problem, though, was what to do about it (i.e, the concern was the remedy not the right). The challenge federal courts faced was to find a way to extend liability to Grokster without extending it to, say, Microsoft’s operating system (or Intel’s microprocessor). After all, many types of technologies – Grokster, Windows, a Dell notebook, Google’s search engine – can be used for both “infringing” and “noninfringing” purposes. It may sound absurd to hold Microsoft liable in copyright infringement for illegal file sharing, but I’d encourage you to try to come up with a clear legal test that reaches the Grokster software while simultaneously not reaching Windows XP.

The lower courts didn’t even try. Applying a strong version of Sony, the Ninth Circuit simply ruled that, because Grokster had valid noninfringing uses, it could not be secondarily liable under Sony. In Grokster, the Court – motivated by understandable animus towards Grokster – unanimously reversed. To thread the tricky needle that the lower courts avoided, Justice Souter tried the following language:

We hold that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties. (emphasis added)

The italicized phrase is key. What Souter is trying to do here is to limit liability to parties, like Grokster, that openly and brazenly promote infringement while shielding more neutral hardware and software technology. The idea is that, before you can sue someone, you have to show specific factual evidence of an intent to infringe.

Sounds pretty good right? In theory, this is an excellent solution, and I’m sure it would have made an excellent law review article. The problem is that it’s a terrible terrible terrible rule in practice. It’s not merely that Grokster encourages litigation, it’s that it encourages disingenuous litigation filed only as a negotiating tactic (or as an attempt to get a settlement from a big pocket).

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