Two diaries I read yesterday really got me going. Hungry Coyote and Lefty Coaster both noted reports that as many as 10 million people might be denied their right to vote this fall. I hope that number is exaggerated.
Sixteen (16) state legislatures have imposed deliberately impossible to implement and deliberately discriminatory "Voter ID" laws. These laws have been passed in the last few months. Little time has been left to implement the laws fairly. And little time has been left for the Department of Justice to overturn these racist voter suppression laws. There is a conspiracy to suppress voting. That's not the question here.
The question is: - Is this an illegal conspiracy?
More specifically I wonder - has this effort violated Civil Rights Act of 1965? And have the conspirators used the methods of racketeers and so violated the RICO statute? If the answers to both questions are yes, then US Department of Justice should start prosecuting all those coordinating this blatantly racist and undemocratic effort.
Below I argue that these Voter ID laws violate the Voting Right Act (Civil Rights Act of 1965). And that because the Voter ID laws violate the Voting Right Act, the illegal Voter ID laws should be seen as a racketeer's illegal transfer of existing 'means of identification' under the RICO statute.
The RICO statute became US Federal law in 1970. It is an unusual law. To be found guilty of ‘racketeering’ under RICO a person must have committed subsidiary crimes; and they must have committed crimes of 'racketeering' to further their subsidiary crimes; and they must have committed them in concert with others. (More on Rico in a note at the end).
1. The Subsidiary Crime Department of Justice should argue that each discriminatory and self-sabotaging 'voter ID' law is obviously illegal as each violates Section 2 of Civil Rights Act of 1965. "The 1982 amendment provided that proof of intentional discrimination is not required. The provision focused instead on whether the electoral processes are equally accessible to minority voters."
(from wikipedia/voting rights act) In Pennsylvania one official admitted that the purpose of the law was discriminatory - so they concede that is there intent.Turzai admits intent
2. The act of Racketeering Department of Justice should argue that that the imposition of Kafka-esque voter ID laws constitute a racketeer's illegal transfer of the affected voters existing voter identification under 1862 (a) (7).
Among the federal crimes defined as 'racketeering' are crimes involving the misuse of identification:
“(a) Whoever, in a circumstance described in subsection (c) of this section—
…(7) knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another person with the intent to commit, or to aid or abet, or in connection with, any unlawful activity that constitutes a violation of Federal law, or that constitutes a felony under any applicable State or local law;…shall be punished as provided in subsection (b) of this section. “(18 USC Section 1028)
Assuming evidence of co-operation can easily be found, then this pattern of activity seems like a RICO crime: the violation of a Federal Statute (Voting Rights Act of 1965) by knowingly passing unconstitutional laws committed acts of racketeering (the taking of people’s existing means of voter identification) in concert with others. Department of Justice should prosecute those who took away people's existing voter IDs in furtherance of an illegal and discriminatory voter suppression campaign.
Possible Objections
Lack of Evidence? I assume that evidence can be found. Subpoenas of the legislators who introduced this batch of voter ID laws should generate a lot.
No Economic Gain? Potential defendants could argue that they don’t stand to gain directly from these voter suppression laws. But the Supreme Court has held that evidence of direct economic gain is not required for RICO to be used to prosecute people behaving like racketeers. wiki/Scheidler vs NOW(2006)
Tenuous theory of "transfer"? The crux of the argument made above is that the Racketeering component of the RICO statute is that the imposition of the new voter identification requirement constitutes a “transfer” of the voter’s existing means of identification. Clearly the voter suppression laws don't physically take the voters' IDs from them. But that argument is strengthened by asserting that what is illegally transferred is the affected voter’s power to vote – and that power is transferred from the existing means of identification to the deliberately unobtainable ‘new’ means of voter identification.
Tenuous theory of "illegal transfer". State officials will argue they were just following state law. Lobbyists will argue that they were just fighting voter fraud. But somewhere there is evidence that they knew exactly what they were up to. There must be emails saying 'this won't stand up in the courts but that will take months.' State officials ought to have simply ignored these laws as enforcing them clearly violates their duty to uphold the US Constitution. The conspirators know these laws violate the Voting Rights Act but hope that the state laws can last through Election Day.
Voting Rights Act hasn't been applied in this fashion?- True - most enforcement of the Voting Rights Act (Civil Rights Act of 1965) seems to have centered around redistricting. But "Section 2 contains a general prohibition on voting discrimination, enforced through federal district court litigation. Congress amended this section in 1982, prohibiting any voting practice or procedure that has a discriminatory result. The 1982 amendment provided that proof of intentional discrimination is not required. The provision focused instead on whether the electoral processes are equally accessible to minority voters."
(from wikipedia/voting rights act)
So my answer to this objection is: given the facts, now seems like the time to litigate section 2.
Politics – Courts will probably not overturn immunity statutes to allow prosecution of state legislators -even if it can be shown they knew the voter ID laws were illegal. But the paid lobbyists of the conspirators - and the paymasters - should not be immune from prosecution.
Local control of Elections - The constitution lets each state determine its own election law. But those laws are subject to the equal protection clause of the Constitution and the Voting Rights Act.
These discriminatory laws should be overturned. And their advocates should be prosecuted. Department of Justice ought to act with extreme rapidity - another election could be stolen because of this conspiracy. There is no time to waste.
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More on RICO: “Under RICO, a person who is a member of an enterprise that has committed any two of 35 crimes—27 federal crimes and 8 state crimes—within a 10-year period can be charged with racketeering. Those found guilty of racketeering can be fined up to $25,000 and sentenced to 20 years in prison per racketeering count.” (from Wikipedia/Rico)