In reporting that North Carolina is likely to enact a voter ID law that was vetoed by the former governor, the Associated Press failed to acknowledge the relationship between Section 5 of the Voting Rights Act and photo requirements that threaten the right to vote. Federal courts have found voter ID laws with photo requirements to be impermissible under Section 5, which bars states with a history of racial discrimination from changing election practices absent federal review.
Voter ID is a top priority for North Carolina Republicans, who gained control of both executive and legislative branches during the November state elections. Although the AP noted the opposition to this legislation, it reported it as a partisan counterargument:
[New Republican Governor] Pat McCrory and Republican legislative leaders pledged that if elected, they would undo vetoes from Democratic Gov. Beverly Perdue that GOP legislators could not override because they lacked enough votes.
At the top of the list was the 2011 bill requiring voters to show photo identification to cast ballots in person.
North Carolina Republicans have said they wanted the photo ID requirement to ensure the integrity of elections and discourage voter fraud. But Democrats and civil rights groups have accused Republicans of passing voter ID because many people who don't have photo identification - the poor and minorities - disproportionately vote Democratic. They say that fraud is extremely rare and that photo ID would erode voting rights expanded over the past 50 years.
The extreme rarity of in-person voter fraud is a fact, not just a Democratic rebuttal to the types of voter ID laws recently proposed by state Republicans across the country. Furthermore, federal judges who examined these laws under the Voting Rights Act (VRA) in the run-up to the 2012 elections issued extensive findings that these laws can impermissibly disenfranchise voters of color. Nevertheless, the AP reported these points as partisan opinion, in the same fashion it commented that "Democrats and civil rights groups" maintain photo ID laws "erode voting rights expanded over the past 50 years."
Voting rights have been protected for the past 50 years because of the VRA, historic civil rights legislation that the AP did not mention. Section 5 of the VRA, which requires that changes to election practices - such as photo voter ID laws - by states with a history of racial discrimination first be reviewed and approved by the Department of Justice or a federal court, has been indispensable. Judges have noted this key role of Section 5 in fighting Jim Crow in opinions that halted impermissibly discriminatory voter ID laws in South Carolina and Texas, a history referenced by former North Carolina Gov. Bev Perdue when she vetoed the voter ID law North Carolina Republicans are now poised to pass.
The relationship between Section 5 of the VRA and North Carolina is especially relevant because the state is partly covered by the provision, and was the source of a right-wing challenge to the law in Nix v. Holder. The Supreme Court accepted a similar challenge from Alabama, Shelby County v. Holder, and oral arguments on the fate of Section 5 are scheduled for February 27.
A full understanding of why voter ID is legally problematic, especially in North Carolina, is impossible without discussion of Section 5. Putting the North Carolina version in context is especially important for the media now that those states challenging the constitutionality of Section 5 before the Supreme Court are also challenging the findings that their election practice changes illegally discriminated on the basis of race.
As the North Carolina voter ID law proceeds legislatively, the AP must discuss this clear overlap between those who continually push flawed voter ID laws and those who seek to do away with one of the most effective civil rights laws in American history. The stakes are high nationally, and certainly for North Carolina, as State Board of Election data show that nearly one in ten voters may be disenfranchised by the proposed photo voter ID law.
As conservative legislators in nine states renew the push for restrictive voter ID laws, their efforts have been aided by state media outlets that continue to ignore or misinform readers on the issue.
Republican lawmakers in several states -- Alaska, Arkansas, Missouri, Montana, New York, North Carolina, Virginia, West Virginia and Wisconsin -- have stated that new or more restrictive voter ID rules will top their agendas in 2013. (Republicans control both houses of the legislature in all those states but New York and West Virginia. In Virginia, the GOP controls the House and maintains a 50/50 split with Democrats in the state Senate.) These proposals come just weeks after the 2012 election, in which there was no evidence of massive voter fraud.
A Media Matters analysis of the largest newspapers in each state found that coverage of these new voter ID initiatives has been largely devoid of context about the overstated dangers of voter fraud or of the significant influence of the American Legislative Exchange Council (ALEC), a shadowy organization dedicated to pushing a homogeneous conservative agenda state-by-state. Only four of the nine newspapers covered the 2013 initiatives at all, and only one mentioned ALEC.
Opponents of effective voting rights enforcement have taken to right-wing media outlets to allege that the Department of Justice engaged in "collusive," "illegal," and "crooked" acts for its role in the determination of whether a California county and the state of New Hampshire qualify to opt-out of Section 5 of the Voting Rights Act (VRA). But these allegations of "trickery," most recently pushed by National Review Online contributor Hans von Spakovsky, ignore that DOJ is complying with the text of the VRA as interpreted by the courts.
Two former Bush administration DOJ officials have accused the department of acting improperly in the successful removal of Merced County, California, from the voter protection requirements of Section 5 and the ongoing consideration of such an opt-out for New Hampshire. Writing on the right-wing blog PJ Media, J. Christian Adams argued that in the Merced case DOJ had "ignore[d] the law" and "conned" a federal court as part of an "elaborate legal ruse" to preserve the VRA in Shelby County v. Holder, the case in which the U.S. Supreme Court will consider a claim that Section 5 is unconstitutional. Continuing this attack, von Spakovsky accused the DOJ in the National Review Online of similar "deception" and "manipulation" of the VRA in its considerations of the New Hampshire case, again in order to "manipulate the Supreme Court in the Shelby case." A conservative advocacy group immediately adopted their argument and filed a motion to intervene in the New Hampshire case, as was predicted by election law expert and law professor Rick Hasen:
I expect this argument to get a lot of play.
The great irony here, for those who don't follow this issue closely, is that you have people who oppose section 5 of the VRA complaining that DOJ is making it too easy for those jurisdictions subject to its preclearance provision to escape from the Act's coverage.
Under Section 5 of the Voting Rights Act, Southern jurisdictions who illegally denied citizens the right to vote during the Jim Crow era - and subsequent jurisdictions that engaged in similar conduct - are forbidden from changing covered election practices without federal approval. There is a legal opt-out to Section 5, by which jurisdictions can "bailout" of the "preclearance" requirements by proving they are no longer breaking the law. To encourage successful bailouts, Congress increasingly "liberalized" this process. Similarly, the Supreme Court in its last VRA case -NAMUDNO v. Holder - "rewrote" the bailout requirements to encourage even more use of the process.
Nevertheless, right-wing activists have successfully placed the Shelby case before the Supreme Court, which could release all covered jurisdictions if Section 5 is declared unconstitutional. Adams and von Spakovsky, who quote anonymous sources and internal DOJ documents to support their arguments, argue that DOJ has "designed" a "legal strategy" to avoid this outcome by aggressively following NAMUDNO.
Beyond the unremarkable fact that the DOJ - the defendant in Shelby - would prefer not to both lose the case and part of the most effective civil rights law in history, Adams and von Spakovsky misrepresent the bailout cases to claim neither Merced nor New Hampshire qualify. Adams complains that the extensive DOJ investigation of Merced's bailout request revealed that the county should have submitted certain past election changes for preclearance and because the county "settled" a Section 5 case, it was ineligible for bailout. But Merced's counsel responded to Adams' accusations, pointing out that "case law under Section 5...holds that the preclearance obligation can be retroactively satisfied":
Mr. Adams is simply incorrect about the Lopez litigation. There was no "settlement"; the County won that lawsuit outright, having summary judgment granted in its favor. See Lopez v. Merced County, 2008 U.S. Dist. LEXIS 3941 (E.D. Cal. Jan. 16, 2008). Thus, the County was not disqualified from bailout by virtue of the provision relating to consent decrees entered within the last 10 years. 42 U.S.C. § 1973b(a)(1)(B).
[R]egarding the submission of a number of historical voting changes for preclearance in connection with the bailout, there are a number of points to be made:
Section 5 itself provides that oversights in preclearance compliance may be forgiven in a bailout action if they were "were trivial, were promptly corrected, and were not repeated." 42 U.S.C. § 1973b(a)(3). In other words, Mr. Adams's implication that Section 5 has a "no tolerance" standard--and that the Attorney General is therefore ignoring the command of Congress--is refuted by the text of Section 5 itself.
"[P]ost hoc" preclearances are typical in connection with bailout, seriously undermining the notion that such an approach is part of a vast conspiracy to save Section 5.
Adams subsequently admitted "retroactive" preclearance was possible.
Von Spakovsky repeated Adams' claim that states seeking bailouts must not have "failed to submit for preclearance...voting changes they have made" over the past ten years, without acknowledging the retroactive preclearance that may occur for New Hampshire. Von Spakovsky used this misleading point as proof that New Hampshire is actually less qualified than Shelby County for a bailout, because New Hampshire allegedly has more unsubmitted preclearance requests than Shelby County did. But the footnote from the Shelby case on appeal that von Spakovsky partially quoted for the uncontroversial rule that unprecleared voting changes - absent retroactive approval - preclude bailout, explicitly notes that Shelby County's primary problem was DOJ's objection:
Although the Court did not permit discovery into the question of Shelby County's bailout-eligibility, it is clear -- based on undisputed facts in the record -- that Shelby County is not eligible for bailout. Under Section 4(a)(1)(E), a jurisdiction is only eligible for bailout if, during the ten years preceding its bailout request, "the Attorney General has not interposed any objection...with respect to any submission by or on behalf of the plaintiff or any governmental unit within its territory." 42 U.S.C. § 1973b(a)(1)(E). The Attorney General concedes that, in 2008, he interposed an objection [.]
In a recent column, Wall Street Journal editorial board member James Taranto seized on a tribute to lifelong civil rights activist Lawrence Guyot written by the progressive Constitutional Accountability Center as an opportunity to attack the Voting Rights Act of 1965. But Taranto's criticism of the most effective anti-discrimination law in history ignores ample relevant history and case law.
Guyot passed away on November 22 at the age of 73. As a civil rights worker in the 1960s, he was beaten, jailed, and tortured for the voting rights and anti-segregation advocacy he undertook on behalf of African-Americans in Mississippi. In their tribute to Guyot, CAC noted that while current voter suppression is nowhere as violent as the tactics Guyot suffered, if unchecked by the Voting Rights Act, their effects still present discriminatory voting obstacles.
In his November 29 column, Taranto used CAC's Guyot obituary to attack Section 5 of the VRA, which Congress and federal courts have consistently reauthorized and utilized as essential for protecting the voting rights of millions of citizens who aren't white. Taranto also criticized the absence of extensive legal analysis in the obituary, complaining that it instead had "adjectives and adverbs," and more than one use of the word "iconic."
For a pair who work for something called the Constitutional Accountability Center, [Doug] Kendall and [Emily] Phelps don't have a lot to say about the constitution. Their defense of Section 5 is purely sentimental, with lots of intensifying adjectives and adverbs. Shelby County v. Holder, they exclaim, is "a monumentally important challenge to a key part of the Voting Rights Act, the iconic law for which for which [sic] Mr. Guyot shed blood."
Taranto, who cites a map and the Supreme Court brief for the Alabama county challenging the constitutionality of the VRA, focuses solely on the obituary to accuse CAC of not discussing the Constitution more in their tribute to Guyot. Yet Taranto fails to mention the extensive legal analyses and legal briefs CAC has written on the constitutionality of the VRA, all easily accessible on their website, as well as in other news outlets.
It is true that that CAC used the word "iconic" four times. It is also true that Taranto managed to write an entire column on the inappropriateness of Section 5 of the Voting Rights Act without once using the words Jim Crow, and only referencing voter suppression in quotes. Discussion of these topics is crucial to any analysis of the VRA.
Throughout his column, Taranto questions why only certain areas must get approval for changes to their election practices under the VRA. The answer is simple: even with the passage of the Fourteenth and Fifteenth Amendments to the Constitution following the Civil War, states of the Old Confederacy in the South refused to recognize equal protection and voting rights for African-Americans, through Reconstruction to the late Jim Crow era. From the U.S. Commission on Civil Rights' 1971 introduction to the 1970 VRA amendments:
Despite these constitutional protections [of the Reconstruction amendments], blacks in the South were virtually disenfranchised from the end of the Reconstruction Period until 1965, and members of other minority groups have also frequently been denied the right to vote.
It was not until the passage of the Voting Rights Act of 1965, however, that this right was extended to black people in the South in a meaningful way.
As Congress discovered more evidence of discrimination against racial, ethnic, and national origin minorities, more geographic areas were added to the scope of the VRA's anti-discrimination protections. Evidence of this discrimination can be shown by disproportionate effects or basic logic, which is why one appellate court recently found evidence of the former in South Carolina, and another appellate court utilized the latter to explain that if the predominant number of "young,...elderly and poor voters" affected by voter suppression in Texas are racial minorities, the VRA applies.
The reason that non-Southern areas remain uncovered by Section 5 of the VRA despite recent evidence of similar voter suppression is also unexplained in Taranto's column. States uncovered by the VRA do indeed engage in the same discriminatory tactics that have been overwhelmingly rejected in the courts. The answer to this omission is not complicated: it was difficult enough to pass the 2006 reauthorization of the Voting Rights Act during a Republican presidency, and as evidenced by current Republican obstruction, updating the VRA to cover additional areas has become increasingly unlikely.
Taranto was correct that CAC's obituary of Guyot did not go into a detailed legal analysis of whether the reauthorization of the VRA in 2006 was appropriate. If he wants to see their legal analyses, however, he can read the briefs they have filed in the case or he could read any of the many blogs and articles they have written on the issue. From the CAC's Text & History:
To anyone who takes the Constitution's text seriously, there are glaring holes in the conservative constitutional attack on the Voting Rights Act. Shelby County's primary argument is that the Act's preclearance requirement is outdated and unnecessary, given changes in Alabama (where Shelby County is located) and elsewhere, but the Constitution, in fact, assigns to Congress the job of deciding how to enforce the Constitution's ban on racial discrimination in voting.
It is certainly true that the coverage formula relies on decades-old data that has less relevance today. But, as the D.C. Circuit concluded, the formula was always less important than the jurisdictions it covered. Going all the way back to 1965, "Congress identified the jurisdictions it sought to cover - those for which it had 'evidence of actual voting discrimination' - and then worked backward, reverse-engineering a formula to cover those jurisdictions." And, as the record described by Judge Bates and Judge Tatel in Shelby County shows, these jurisdictions continue to be the worst offenders, consistently refusing to live up to the Constitution's promise of a multi-racial democracy.
Fox News regular Hans von Spakovsky used a recent U.S Court of Appeals decision striking down Michigan's affirmative action ban as an opportunity to denigrate the "modern 'civil rights' movement" and misrepresent the Sixth Circuit decision as "abusive activism." Contrary to von Spakovsky's claims in the National Review Online, the appellate decision that found the process behind the ban unconstitutional is based on U.S. Supreme Court precedent.
Repeatedly discredited von Spakovsky is infamous for continuously stressing in the right-wing media the prevalence of voter fraud, despite a dearth of evidence. On November 16, he took on equal protection jurisprudence in the National Review Online and criticized the "continued legal decay" of the Sixth Circuit appellate court and its "liberal activists." His scorn was in response to the recent decision of this federal court of appeals which - for the second time - declared that the 2006 Michigan ballot initiative that passed a constitutional amendment banning affirmative action was an unconstitutional restructuring of the state political process. As reported by SCOTUSblog's Lyle Denniston:
By imposing a total ban on any consideration of a race-based education policy, the main opinion said, the majority of voters who opposed affirmative action created a situation in which they not only had won on a policy point, "but rigged the game to reproduce [their] success indefinitely." Minorities are not guaranteed that they will win when they enter into political policy debates, the opinion stressed, but they must not be put at a special disadvantage in seeking policies that they favor and that will benefit them in particular.
The Circuit Court majority opinion, written by Circuit Judge R. Guy Cole, Jr., relied explicitly upon two Supreme Court rulings, both based on the same "political process" reasoning used by Judge Cole. The first was Hunter v. Erickson, a 1969 decision striking down a move by voters in Akron, Ohio, to change the city charter to make it much harder for city officials to adopt any housing policy to benefit racial minorities. The second was Washington v. Seattle School District No. 1, a 1982 decision striking down a voter-approved statewide law that bar the use of busing to achieve racially integrated public schools.
Other conservative media reporting has at least acknowledged that the ACLU and NAACP based their successful challenge to Michigan's ban - known as "Proposal 2" - on Supreme Court precedent. Forbes, although it wrote in opposition of the holding, recognized such precedent but theorized it "would probably be treated differently by the Supreme Court today" because there are likely four justices currently opposed to all affirmative action. Unfortunately, Forbes also misrepresented the opinion as holding "minority groups are entitled not just to equal protection under the laws, but special measures designed to correct past discrimination."
In fact, the winning argument and opinion explicitly did not turn on the constitutionality or "entitlement" of affirmative action, but rather on the restructuring of a state political process to the specific detriment of a racial minority. As reported by The New York Times:
[The decision] was not based on racial discrimination, but rather on a violation of the 14th Amendment's guarantee of equal protection. The ban, the court said, unfairly placed a special burden on supporters of race-conscious admissions policies.
People trying to change any other aspect of university admissions policies, the court said, had several avenues open: they could lobby the admissions committee, petition university leaders, try to influence the college's governing board or take the issue to a statewide initiative. Those supporting affirmative action, on the other hand, had no alternative but to undertake the "long, expensive and arduous process" of amending the state Constitution.
"The existence of such a comparative structural burden undermines the equal protection clause's guarantee that all citizens ought to have equal access to the tools of political change," said Judge R. Guy Cole Jr., writing for the majority.
Von Spakovsky, however, did not bother to analyze this reasoning or acknowledge Supreme Court precedent in his condemnation of the Sixth Circuit's "duplicitous legal reasoning." Instead, he summarily relied on the dissent's assertion that the holding was an "extreme extension" of civil rights law and concluded:
The Sixth Circuit's decision shows just how far the modern "civil rights" movement and their supporters in the judiciary have gone in adopting the arguments and actions of the discriminators and segregationists of prior generations. Their support for racial discrimination makes them indistinguishable.
Three Fox hosts have allowed Congressman Allen West (R-FL) to repeat his unsubstantiated allegations that election official wrongdoing led to his failing bid to retain his seat. The Fox hosts not only failed to push back on West's legally unfounded position, but neglected to report that these complaints are about Florida election system problems that have been ignored or exacerbated by the state GOP.
In support of his refusal to concede the race to represent Florida's 18th Congressional District - despite the fact that the state has already certified Democrat Patrick Murphy's victory - West has been complaining that "irregularities" in county officials' performance during the ballot tabulation process, the change in voting tallies as the tabulation proceeded, the outcome of a partial recount, and the accounting of more ballots than voters, requires another partial recount of all votes cast during the early voting period. On the November 12 edition of Fox's Hannity, West made all of these accusations to host Sean Hannity, who responded that he thought a vote shift away from West to Murphy during the counting process was "unbelievable."
West repeated these claims to Fox host Greta Van Susteren on the November 13 edition of On The Record, and again on November 14 in a recorded interview with Fox host Martha MacCallum for America's Newsroom. Like Hannity, these Fox hosts did not press West on his insinuations of election malfeasance. The most obvious example was Van Susteren, who referenced West's second lawsuit filed in a Florida state court seeking an early vote recount in defiance of state law, but made no mention of his first failed lawsuit. That lawsuit, which also sought to "count paper ballots and to impound voting machines," had been denied on November 9 by a state judge. In addition to noting that West's motion had "woefully failed to establish a proper demand for injunction," the judge scolded West for contesting the election results in court when "the Supreme Court of Florida 30 years ago has said the courts should not get involved in the election process under facts and circumstances which we have here today."
More significantly, Hannity, Van Susteren, and MacCallum all failed to report that West's unsubstantiated complaints about the dysfunctional Florida election process is partly attributable to recent voter suppression efforts. As reported by the Orlando Sentinel, the incoming Republican House Speaker has already "conceded" that Florida's difficult election process and its "embarrass[ing]" irregularities may have been caused by early voting and registration changes pushed through by Republicans in the state legislature. In conjunction with budget cuts that targeted county election offices, recent GOP attempts to restrict opportunities for voting resulted in the predictable and widely reported chaos that West now complains about.
The swing in vote tallies, however, is an old problem and one that none of the Fox hosts addressed. Not only is West complaining about a losing margin more than three times that of Gore's for the entire state of Florida in the presidential election of 2000, West is also complaining about a swing in votes from himself to Murphy that is only about a quarter of the infamous Volusia County swing in votes away from Gore for Bush. Further, the optical-scan voting machines at the center of West's complaints are of the same make as those used in Volusia in 2000, as reported by election integrity expert and Salon contributor Brad Friedman, but that important context was absent from Fox's segments on the issue.
The make of the voting machines is also relevant to West's challenge of the partial recount of early votes in St. Lucie County. The election supervisor there has already explained the partial recount of some votes was necessary because of an electronic memory cartridge failure. Hannity, Van Susteren, and MacCullum not only failed to report this fact, they also failed to report such memory cartridge failure is an extremely common problem in Florida, as was extensively detailed by the Daytona Beach News-Journal.
Finally, the discrepancy between voters and votes tallied that West references has already been explained by multiple outlets as a consequence of tabulation machines erroneously counting two-page individual ballots as multiple ballots. This too was unreported by Fox News as it continues to give Allen West a platform to advance his unproven reasons for refusing to concede, without challenging the problems with his claims and providing the necessary context of a Florida election system badly in need of reform.
Fox appears poised to manufacture a scandal involving the New Black Panther Party appearing at a polling station in Philadelphia.
On Election Day 2008, two members of the New Black Panther Party appeared outside a polling station in Philadelphia, with one of them carrying a club. The Department of Justice (DOJ) under then-President George W. Bush brought a civil voter intimidation lawsuit against the New Black Panther Party and several of its members over the incident. After President Obama took office, the DOJ decided to pursue the case against the defendant carrying the club but dropped the lawsuit against the other defendants.
Fox and other right-wing media outlets obsessed about DOJ's decision to drop some of the claims, saying that DOJ was corrupt and refused to pursue charges against African Americans. The story never added up and was dismissed by a broad and bipartisan group of media and political figures.
Ultimately, DOJ's Office of Professional Responsibility investigated the allegations against DOJ attorneys and determined that Justice Department attorneys "did not commit professional misconduct or exercise poor judgment, but rather acted appropriately, in the exercise of their supervisory duties in connection with the dismissal of the three defendants in the NBPP case." The investigation also found no evidence that decision-makers at DOJ "were influenced by the race of the defendants, or any considerations other than an assessment of the evidence and the applicable law."
But Fox appears ready to go through the same cycle again, highlighting a reported member of the New Black Panther Party who reportedly showed up outside the doors of a polling station and was shown on video opening a door for someone going inside. Co-host Steve Doocy stated that "the organization claims they are monitoring the 2012 election, but some critics say that it looks like intimidation like in 2008."
From the November 1 edition of Premiere Radio Networks' The Rush Limbaugh Show:
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Right-wing media are ignoring anti-fraud protections the Obama campaign has in place to allege that the Obama campaign accepted donations from someone impersonating Osama bin Laden.
Matt Drudge is hyping an article by World Net Daily's Aaron Klein who claimed that "Using a Pakistani Internet Protocol and proxy server, a disposable credit card and a fake address, 'Osama bin Laden' has successfully donated twice to Barack Obama's presidential re-election campaign.' "
Drudge linked to Klein's story under the headline "REPORT: Obama camapign [sic] takes money from 'Osama bin Laden' ":
In fact, the campaign has explained that it has anti-fraud protections in place to stop fake or illegal donations and that just because a fraudulent donation "may initially appear to a donor to have been accepted," such a donation will soon be rejected.
In response to another attempt to show that the Obama campaign is accepting illegal donations, the campaign explained its address verification process to Election Law Blog:
"If a billing address is verified via AVS, then the credit card contribution is processed without delay. Some transactions caught by AVS may initially appear to a donor to have been accepted even though this is not the case. Obama for America employs a manual process to review any transaction flagged by AVS, also taking into account other fraud risk factors, and using fraud detection services provided by our credit card processor.
"As an example, the contribution discussed here http://www.powerlineblog.com/archives/2012/04/dubious-donations-illustrated-illegal-contributor-edition.php may have initially appeared to have gone through when the donor completed the transaction at 10:18 a.m. but it was rejected at 4:51 p.m. under our standard fraud detection procedures.
"So any claims that Obama for America has disabled AVS are inaccurate; any question about this would have been answered-if the question had been asked."
Just minutes after the Supreme Court ruled to allow early voting in Ohio the weekend before Election Day, Fox News host Jon Scott falsely claimed that the Obama campaign sought to stop military families from early voting in the state. Scott further botched the state's early voting history when he claimed that Democrats sought to limit early voting when in fact, it was Republicans.
The real story is that Ohio expanded early voting in 2008 and 2010 in response to long wait times for thousands of voters during the 2004 election. But last year, the Republican-controlled legislature eliminated in-person voting during the three days before the election for everyone but military families and overseas voters.
Scott's rendition of these events conflicts with reality and ignores the role Republicans played to limit early voting:
SCOTT: Ohio's voting laws are going to be changing, it would appear. There was an early voting program voted in by the state of Ohio for military members and their families. They were to be allowed to vote early. The Democrats and the Obama campaign asked that that be blocked. They, for whatever reason, did not want military families and military members voting extra early. A couple of lower courts blocked the law -- again, at the request of the Obama campaign and state Democratic officials. Now it's gone to the Supreme Court. The Supreme Court is going along with that block. According to our Shannon Bream, who covers the Supreme Court for us, we believe that is what is going to result from all of this is that everybody in Ohio is going to be allowed extra-early voting. No special privileges for military members and their families.
Fox News completely misrepresented an Obama campaign lawsuit to expand early voting in Ohio to claim that it disenfranchised military voters in order to gain an advantage in the election. In fact, the lawsuit in question has increased all Ohioans' opportunities to vote and did not disenfranchise anybody.
Until 2011, Ohioans could cast early votes in the days preceding an election. But that year, the Republican-controlled Ohio legislature implemented statutes that restricted early voting on the Saturday, Sunday, and Monday before Election Day to members of the military and their families. The Obama campaign won a lawsuit seeking to overturn the statutes that restricted early voting for non-military voters, and Fox was reporting on Ohio officials' decision to ask the Supreme Court to reverse that ruling.
Fox & Friends co-host Gretchen Carlson claimed that, due to the court decision, "thousands of military members in Ohio may not be able to cast their vote." Carlson later speculated that the Obama campaign was purposely seeking to restrict military voting in order to gain an electoral advantage.
Fox senior judicial analyst Andrew Napolitano picked up the theme, saying: "I think the Obama administration is willing to use the court system to keep people who they think will vote for Governor Romney and Congressman Ryan from doing so."
Napolitano later claimed that military voters "have the weekend in which to vote. You have Saturday, Sunday, Monday, and Tuesday like everybody else," but military voters have lost an "extra five days" to vote.
But none of what Carlson or Napolitano is remotely true.
Fox News and CNBC regular and "birther" conspiracy proponent Donald Trump reacted to a conservative group's unsubstantiated report that President Obama's campaign may be receiving illegal donations from foreign donors by calling him a "Foreign candidate getting foreign donations."
In fact, the report, from conservative group the Government Accountability Institute, did not assert that the Obama campaign is receiving unlawful contributions, and the group's founders have admitted that fraudulent and foreign donations are just a "concern."
From Trump's twitter feed:
Fox's Steve Doocy invented the claim that President Obama's reelection campaign may be receiving tens of millions of dollars from foreign sources in violation of federal law.
Doocy based his allegation on a claim by a Government Accountability Institute (GAI) report that 43 percent of online traffic going to the Obama campaign website came from foreign countries as well as the fact that Obama has raised more than $270 million from small donors. But Doocy's guests from the GAI acknowledged they had no evidence to back up Doocy's claim.
Interviewing GAI co-founders and conservative activists Stephen Bannon and Peter Schweizer, Doocy said: If your number is accurate, and it's 43 percent comes from international, we're talking tens of millions of dollars." But Bannon immediately responded that he was not saying that 43 percent of Obama's donations come from foreign sources.
Indeed, the Government Accountability Institute report states Americans living abroad and foreign nationals interested in the president certainly make up part of the international traffic to Obama's campaign website:
The main campaign website BarackObama.com receives approximately 43% of its traffic from foreign IP addresses, according to Markosweb.com. Though Americans living abroad no doubt generate some of this interest, the majority is likely from foreign nationals. Though there is nothing inherently wrong with the President's international attention, his donation pages' lack of CVV means that this interest creates significant vulnerabilities for the integrity of the campaign's donation process.
Bill O'Reilly and Fox News legal analysts Kimberly Guilfoyle and Lis Wiehl dismissed and mischaracterized a lawsuit alleging that a citizenship question on certain Michigan ballot applications illegally burdens the right to vote. But the "citizenship checkbox" may keep citizens from voting, as the state's Republican Governor anticipated when he vetoed an earlier attempt to implement the practice.
The ACLU of Michigan has filed a lawsuit accusing Michigan Secretary of State Ruth Johnson (R) of once again violating state and federal law by including a checkbox to re-determine a voter's citizenship on absentee and election-day ballot applications. Although supporters defend the practice as a means to prevent noncitizens from voting, election experts have pointed out redundant citizenship verification is a solution to an almost non-existent problem, contrary to the claims of Johnson and Fox's Guilfoyle.
O'Reilly characterized the ACLU lawsuit seeking to eliminate the citizenship checkbox as "madness and stupidity," and threatened that if a "crazy judge" granted the injunction, he would "put the judge's face on the screen and then send [Fox's Jesse] Watters out to see him." Fox's legal analysts not only agreed with O'Reilly's evaluation of the facts and law, but also his unsupported allegation regarding the motive behind the lawsuit:
What the ACLU wants is they don't want people committing perjury when they register. They do want people voting, who are not American citizens, to advance. They believe that most of those people would vote for the Democratic candidate in Michigan. That's exactly what's going on here.
No one acknowledged the actual arguments behind the lawsuit, namely that including a checkbox for citizenship affirmation on these ballot applications violates state and federal law and suppressed voters in Michigan's most recent primary election. It was this concern that led Governor Rick Snyder (R) to veto the proposed citizenship checkbox law in July. In his veto message, Snyder, a conservative Republican, stated the citizenship question could impermissibly "create voter confusion."
Voting by noncitizens is not a problem nationally or in Michigan. Indeed, according to the authoritative and exhaustive News21 study of thousands of alleged instances of voter fraud in the U.S., voter fraud such as noncitizen voting is "virtually non-existent." With respect to Michigan, an analysis by Wayne State University Law Professor Jocelyn Benson of the Michigan Center for Election Law demonstrates that:
[Secretary of State] Johnson has irresponsibly declared that 4,000 noncitizens vote in Michigan's elections, falsely claiming that the federal government is forcing her employees to register ineligible voters.
Her data is incomplete and unverified. The 4,000 number is no more than a general estimate of how many of Michigan's 7.5 million registered voters are not citizens.
In reality, she claims to have discovered 54 noncitizens who may have voted in Michigan's elections in the past decade, and as many as 900 others who are registered but have not voted. Yet the secretary of state is able to provide details on only two noncitizens who have recently voted. That's a far cry from 4,000.
State efforts, such as Michigan's, duplicate federal law that already prohibits and punishes ineligible voting and place excessive burdens on eligible voters. A recent Advancement Project report indicates that the Latino vote in particular is susceptible to the low turnout caused by redundant citizenship screens. According to the Michigan Election Coalition, this sort of unconstitutional burden was precisely what occurred during the 2012 Michigan primary election when poll workers across the state gave contradictory and erroneous instructions to eligible voters about the voluntary nature of the checkbox. It was this inconsistent treatment of voters across the state that led the ACLU to challenge the checkbox as a violation of the federal equal protection clause of the U.S. Constitution, not the due process clause as Fox's Wiehl incorrectly stated.
Furthermore, Johnson may not even have the power to place the citizenship question on the ballot. The state legislature originally tried to pass the election change in a bill, and Michigan law does not appear to allow the Secretary to unilaterally adopt this failed legislation. Even if it did, there does not appear any justification for the Secretary to then ignore the standard administrative notice and comment procedure behind the introduction of new state rules. Finally, the Secretary appears to have passed an election practice change statewide, despite the fact that the federal Voting Rights Act -- in order to prevent illegal racial or national origin discrimination -- requires certain townships in Michigan to pre-clear any such changes with the U.S. Department of Justice before they are put into effect.
Fox News is now mischaracterizing a court ruling requiring the state of Ohio to allow in-person early voting during the last three days before the election as unfair to members of the military.
On Friday a federal court adopted an injunction preventing Ohio election officials from implementing new restrictions on in-person early voting. The ruling came in response to an Obama campaign lawsuit that sought to overturn a 2011 statute that halted early voting access in the three days leading up to the election except for members of the military and their families. The Obama campaign sought to restore access to the polls for all Ohio residents during that period.
The court agreed, finding that allowing both military and non-military citizens to equally participate in early voting "places all Ohio voters on equal standing." Indeed, the ruling has no impact on military voters and their families, but simply provides all other Ohioans with the same access to the polls they were scheduled to enjoy.
But during the September 3 edition of America Live, Fox News host Megyn Kelly and Wall Street Journal columnist John Fund portrayed the ruling as an insult to the military and an "obstacle" to their access to the polls.
FUND: So what Ohio said is for the last three days before the election we will let military voters vote, but everyone else will have to vote before the three day period. The district judge said, "That's unfair," and said, "You'll have to extend early voting right up until Election Day." It now goes to a federal appeals court. And I think it's pretty clear that the military vote can have a separate designation and can be treated separately because they are different from every average voter.
KELLY: Yeah, they are special. And this was an interesting case we talked about it prior to the ruling because it pitted the Obama administration against military families and voters.
FUND: The National Guard [Association], the Marine Corps Association, all of them said, "This is outrageous what you are trying to do."
KELLY: They said, "There is a justification for treating us differently. And it's not -- you don't get to say that everybody is the same as the military."
FUND: We have enough obstacles in the way of our military now we don't need to create others.
Fund -- who also lambasted early voting in general as "out of control" -- is the latest right-wing figure to invoke the canard that allowing civilians equal access to the polls somehow constitutes an "obstacle" for members of the military who wish to vote.