A Reply from My Critic on North Carolina

Following up on this post, here is a very lengthy reply from my critic below the fold.  (I don’t have the time now to continue the debate with this reader, but I would point out that some things are just plain wrong, such as the connection between a student’s residency and whether or not the student may be claimed as a dependent on her parent’s tax return. Not true.  For more on student voting rights and issues, see this excellent Brennan Center student voting guide. I am reprinting this here because I did promise the reader I would print his reply.)

Dear Professor Hasen,
I apologize for my tardy reply – the holiday weekend seems to have gotten in the way.
Thank you for posting my email on your blog. I appreciate opportunities for conveying opposing views and I respect those who are objective enough to provide them.
I read your response to the comments I provided regarding your piece titled “NC’s voter suppression law”.  I have several thoughts about them I would like to share – I apologize in advance for their length.
Student Voting:
As you stated, there is a long history of attempts by locals to stop non-resident college students from voting – the issue many times turning on simply the definition of a “resident”. Drawing a comparison with non-resident student voting you cite Carrington v. Rash, a case in which locals in Texas sought to disqualify members of the armed forces stationed in Texas from voting.
Most states I’m familiar with require those maintaining a domicile and working in the state to become state residents. This entails little more than transferring vehicle tags and driver’s license to those of the new state, as well as registering to vote, if applicable. 
Few military personnel ever get to choose where they serve – they are assigned. Some may have the opportunity to pick one of several assignments, but outside of those options there are no other choices – military personnel go where they’re sent. Because of this unique reality, military personnel are permitted to retain their homes of record for voting and other purposes even though they are employed and maintain domiciles in the states in which they serve. 
Students, on the other hand, choose to live in the communities in which they attend classes. But because students “work” at their studies and not at full-time jobs, states recognize that out-of-state students are not really state residents – so they are customarily given the same exemption military personnel receive.
In cases of both military personnel or students, the “intent” to become state residents you speak of requires a deliberate act on the part of the voter – they may choose to be a “resident” or a “non-resident” of the state and county in which they each temporarily reside – but here the similarities end.
What then determines “intent”? You say many students leave their driver’s licenses at “home” when they go off to college, and many leave their birth certificates at “home”, as well. Such behavior suggests to me that it was not the “intent” of these students to be “residents” of the state in which they attend school when they first left “home” – otherwise, they would have brought their out-of-state driver’s licenses to school with them so they may transfer their driving credentials and their identities to their new “home” state, irrespective of whether or not they own a car.
What changes for students if later they choose to vote in the state in which they attend school? Did they formally “move” to their new state in their sophomore year, unlike their freshman year? What is it about their movement back to school from “home” in subsequent years that is different from that of their freshman year? Likely, nothing.
For some reason, some choose to become residents of the state in which they study – the preparation of a voter registration application validates that “intent”.
But there is more to this story regarding students than that regarding their military counter-parts. Most full-time college students attend classes directly out of high school, or close in time. For the majority of these students, other “intents” are also in play and relevant – the “intent” of their parents. Irrespective of the intrinsic intent of the student as discussed and decided by the Supreme Court, this is another legal aspect of a student’s “intent” that needs to be considered. If student Johnny Jones chooses to become a legal resident of the state in which he attends school, which he has a constitutional right to do, can his parents still legitimately claim him as a dependent on their income taxes? I think not.
Claiming a person a dependent asserts that Johnny derives the majority of his subsistence from his parents and also that he “resides” with them. If he does not “reside” with them, he cannot be a dependent. If he is not a dependent, his parents cannot claim him as such on their tax returns. If Johnny changes his state of “residence” for voting purposes, he cannot be said to “reside” with his parents – the result is a loss of thousands of dollars per year for Johnny’s parents. What is their “intent” for Johnny?
In this case, I’ll suggest out-of-state students deal with a phenomenon I’ll term “compound intent”, as opposed to “simple intent”.
It seems Democrats want it both ways – they want Johnny to vote where he attends school for whatever purposes that may serve, but they also claim that Johnny’s parents are being financially penalized unfairly on their tax returns when Johnny changes his state of residence. So, to save themselves thousands of dollars in tax liabilities, Johnny’s parents do not accept his reasoning in wanting to change his home of record for voting purposes. Perhaps, Johnny changes it anyway and votes in person at school and votes absentee ballot in his new “home” state – perhaps, not.
But one can’t have it both ways – one can’t be both a legal resident of one state for voting purposes and a legal resident of another state for tax purposes. Yet, that is what many on the liberal side of this argument are offering – but with few details because they don’t want to openly discuss the tax issues involved or Johnny’s parents. They pretend Johnny is fully self-sufficient and a financially independent being when, in fact, he is not – his existence is still being subsidized by parents who claim that subsidy on their tax returns.
So, in this particular scenario voting may actually be harder for Johnny at school using an absentee ballot from his home state, but this process is certainly more fair, ethically sound and legally appropriate than the alternative offered by those attacking the new North Carolina voting law regarding student voters. Harder doesn’t necessarily mean wrong or illegal.
As for there being little, if any, non-citizen student voting as you claim, an absence of evidence doesn’t prove non-existence of fact – it simply means there is an absence of evidence. In the absence of evidence, one must rely on reasoned arguments.
Attorneys for the North Carolina Community College System (NCCCS) made a legal interpretation several years ago that concluded that foreign nationals illegally present in the United States, otherwise known as illegal aliens, may attend any community college in the state and not be in violation of court decisions emanating from Plyler v. Doe, the court case that determined that illegal aliens are to be denied access to post-secondary state education. The NCCCS has determined that as long as such foreign nationals are not enrolled in “academic programs”, they may engage in other programs and attend other classes, while accruing personal benefit from having done so at taxpayers’ expense (federal, state and county subsidies).
Illegal aliens are not, however, permitted to receive grades, diplomas or certifications in these non-academic programs. Because immigration status screening is not conducted for such students, these foreign nationals are officially and decidedly indistiguishable from other students. The use of student IDs for voting in North Carolina would make it impossible to determine if the voter was an American citizen or an illegal alien if the student attended any of the state’s community colleges.
For all I know, this same legal determination regarding Plyler v. Doe exists at the state university level in North Carolina, as well.
I have seen countless illegally present foreign nationals throughout the country paraded through national television and print interviews, cited as examples of academic excellence, and extolled as model “citizens” who graduated academic university programs in violation of Plyler v. Doe – all ostensibly done to support the eligibility of these individuals for immigration amnesty and subsequent citizenship. I can only conclude from the many appearances and stories on such people that states are not performing immigration status screening required by Plyler v. Doe. If illegal aliens are not screened for immigration status and denied academic enrollment at the university level, they too are indistinguishable from other students. For these students, their university photo ID is an invitation to vote for those congressional candidates, incumbants and presidential hopefuls who favor whatever passes for “comprehensive immigration reform”. Said another way, these foreign nationals find themselves in a position to illegally cast votes and favorably influence national policy regarding their illegal immigration status.
In such cases, how would evidence of illegal voting by illegally present foreign nationals be discovered?
Early Voting Cutback:
Since elected, the new General Assembly in Raleigh has been busy trying to keep the State of North Carolina from becoming a financial cousin of New York, California, Illinois and several other states that live under crushing debt and whose public pensions are in serious trouble, not to mention cities like Detroit, Stockton and San Bernadino. By reducing early voting by a week, the North Carolina State Board of Elections and local county boards could save money by not having to staff every precinct in 100 counties for seven days – that is, they could likely cut their election labor costs by as much as 40% if polling access is reduced by one week. Had the state’s General Assembly not been taking fiscally more responsible action in other areas of the state budget, I would agree with you that reducing the number of early voting days makes little sense.
However, I was not aware of the amendment you mentioned – I’ve never heard of it. I took your comment, “the same number of hours need to be in place”, to mean the amended bill requires the polls be open during the reduced 10-day schedule the same number of hours as the 17-day schedule – that makes no sense to me if the purpose of the cutback was financial, as was debated in the General Assembly during the processing of the bill. On the other hand, to telescope 17 days worth of poll access hours into 10 necessarily means that many more hours of polling access will be available to voters during non-work hours, while the total number of access hours remains the same. To me that sounds like a benefit to voters, not a detriment – particularly for workers. Why would such a change be perceived as negative?
And if what you say is true regarding this amendment, why is it that every single liberal take I’ve read about or seen on the news regarding early voting reductions, without exception (including Mr. Berman), savaged the General Assembly for “reducing voter access”, particularly black voter access? I haven’t heard the media mention this amendment – ever. Yet, it continues to provide negative coverage on a story it characterizes as “reduced poll access” that apparently isn’t reduced at all – the voting schedule has simply been changed to one more accommodating of working people. Has journalism in this country gotten to be that incompetent?
Unless it’s just me, something doesn’t sound right, here. Either poll access hours have actually been reduced by this law as reported or a large segment, if not all, of the American news industry is consciously ignoring a major component of this story for some inexplicable reason.
If substantially more non-work time poll access is being provided by this law, why are media stories claiming that working black voters are being unfairly treated?
Many articles speak to black voters being unfairly and negatively impacted by fewer early voting days. For many of those writers, the reported fact that 70% of black voters employed early voting in the last election was used to support an argument of unfairness. But in none of the articles I’ve read did anyone cite the percentage of whites who used early voting – a lot of stats on Republicans versus Democrats are available, but I found none that spoke to figures for white voters.  And I found the source of the 70% figure to be elusive. While ABC News used this figure, it did not cite its source.
Why are not the impacts to white early voters compared with the impacts to black early voters? It seems the analysis and conclusions concerning black early voters exist in a vacuum – to what exactly are they being compared? The statement, “an unfair impact to 70% of all black voters”, in and of itself, means nothing without comparative analysis. I’ve seen nothing on this in the press. Without a complete analysis of the impacts on all categories of early voters, how can outrage be reasonably leveled supporting only one constituent group? If the “impacts” to white early voters were more significant than “impacts” to black early voters, would liberals claim outrage in support of them? Doubtful.
I could accept the argument of early voting cutbacks disproportionately impacting black voters if the universe were static – but it’s not.
The logic of this disproportionate impact argument rests on an illogical assumption – that significant numbers of black voters previously voting on early voting days 11-17 will not vote – that black voters for some inexplicable reason are incapable of modifying previous behaviors when it is their interests to do so. Black voters are not a collection of static behavior patterns in an otherwise dynamic universe – they will change their voting patterns to suit their interests like everyone else. 
What keeps voters, and black voters in particular, from being able to effectively vote in eleven days (ten days early voting plus election day) when formerly there was no such thing as early voting? The fact that the voting window narrowed changes nothing – and every voter must deal with that reality, not just black voters. Many reports I’ve read suggest black voters experience frequent conflicts between work schedules and voting access. Do white, Asian and Hispanic voters not have jobs? And other time obligations that impact their schedules and lives, as well? What is it about black voters that causes changes in voting schedules to seemingly affect them so disproportionately and so negatively?
The fact that black voters availed themselves of 17 days of early voting in such large numbers doesn’t mean they cannot avail themselves of 10 early voting days with the same degree of engagement. A week of voting volume doesn’t disappear because the time frame narrowed – it simply requires a change in pattern and behavior. If one changes his behavior, the Republican-dominated North Carolina General Assembly cannot nullify his vote. The universe is not static.
As for the long lines, everyone else will be in longer lines, as well. Why the argument that somehow blacks will be in longer lines than whites due to a reduction in voting days? If blacks do have longer lines than whites it will be because of too few voting machines – so demand more voting machines and more polling places. It has nothing to do with too few voting days. Blacks in several states have complained in the past of having too few voting machines in their precincts – states where early voting had not been reduced. And I suspect those complaints are valid. A state has an obligation to all its citizens to make the voting experience as uniform as possible – not necessarily comfortable, not necessarily easy – but uniform. I’m more in favor of uniform than easy.
If we had 30 early voting days, the lines would be shorter. If we had 100 early voting days, the lines would be shorter still. If we reduced 100 voting days to 90, there would still be accusations of unfairness. There’s no end to this argument – or the associated nonsense – any change is perceived as negative, regardless of the facts and reality.
I mentioned previously what happens in elections in Iraq and Pakistan – people die. But they vote anyway! I’ve seen first-hand what political party offices in Pakistan look like after they’ve been blown up by bombers on motor cycles – and people voted anyway. They would not be stopped. We as Americans don’t seem to view our right to vote as the special privilege it actually is. We need two and half weeks to vote (more if we can get it), dry weather so we don’t get wet, warm weather so we’re not too cold, cold weather so we’re not too warm, short lines so we can get to dinner or the mall quicker after voting. This country asks very little of its citizens compared to many others. Yet we complain about anything that changes. The right to vote seems to be more cherished elsewhere than here. Why might that be?
Both Republicans and Democrats think in these terms and I find that personally disgusting.
Pre-Registration for 16 and 17 Year-Olds:
I’ve already stated my opposition to pre-registration and I stand by it – pre-registration of minors subjects them to a realistic likelihood of unethical adult political pressure and undue “guidance”, and seemingly serves no other purpose. I would venture to say voting is more a sign of adulthood, the holy grail of teenagers, than is going to college. Teenagers don’t need to be “primed” to vote – they are already prepared and ready to do so. There is no noble purpose furthered here with pre-registration.
Election Mismanagement:
I don’t disagree that many election anomalies are due to mismanagement. What I have a problem with regarding this issue is the fact that whenever a Republican-majority state (Red State) attempts to “scrub” its election registration roll of those who’ve moved to another state, of those who’ve been convicted of felonies or are otherwise unqualified to vote (including illegal aliens), and those who died, all one hears about is how the state is illegally “dumping” qualified Democratic voters from the rolls – Republican voters are never perceived to be “dumped” in this process. Do Republicans never move, get convicted of felonies or die?
A former Department of Justice lawyer estimates that as many as 4 million ineligible voters were registered for the 2012 election. In an election that was decided by 5 million popular votes, that’s significant – who knows what the electoral impact may have been had all of those illegally registered who actually voted been unable  to do so. 
It is my understanding that federal law requires a periodic “scrubbing” of election rolls – I don’t know if that’s true or not. But I never hear of Republicans making the same accusations in Blue States. Is that because Blue States don’t “scrub” their rolls, or Republicans agree with the “scrubbing” or is it simply selective perception on my part?
As to your comment that the primary cause of of election mismanagement is due the “hyperdecentralized” nature of American elections, I’m not sure I understand what you mean. I understand what you said, but I don’t understand what you mean.
Either the statement that there are occasions of more votes cast than there are registered voters in a given precinct is true or it is not true. If it is not true, then urban legends live on. If it is true, what has decentralized administration, or degrees of competence or insufficient funding to do with it?
In modern presidential elections, voter turnout as a percentage of registered voters is in the high 40s and 50s. In off-year elections, it is in the 20s and 30s, and maybe as high as the low 40s. These numbers reflect statistically significant gaps between registrants and voters. In order for total vote counts to exceed total voter registrations, there must be something significantly wrong. Decentralization of administration, incompetence and funding shortfalls explain, at least in my mind, why registration rolls would be higher than they should be – they don’t explain to me why the registration rolls would be lower than they should be, sufficiently lower to permit them to be exceeded by total vote counts. Artificially higher registration rolls make it harder for vote totals to exceed registration totals.
If valid registrations were not being input to the rolls for the reasons you mention, voters would either be turned away or their provisional votes would not be counted against the registration volume until validated. In either case, the relationship between the votes cast and the number of registrations would be unitary. But the counting of more votes cast than registered voters occurs only after all votes have been validated. How does that happen if there if no fraud?
In my mind, decentralization, incompetence and insufficient funding would more likely preclude accurate roll “scrubbings” than cause failures adding new registrations that would go undetected – registrations result in registration cards being sent to registrants. If one doesn’t get his card in several weeks, he can contact the board for correction. If “scrubs” are not occurring, it is not detected by the public and there is no one to call to fix it.
So, if decentralization, incompetence and insufficient funding are causing a compromise to the integrity of voter registration rolls, registration rolls must necessarily be artificially higher than they should be, not lower. Such a situation would make votes exceeding registrants less likely, not more likely.
Additionally, one would expect decentralization, incompetence and lack of sufficient funding to be equally distributed across all precincts in county and state election boards. But that doesn’t appear to be the case – occasions of numbers of votes cast exceeding registrations seem to be isolated and “random”, not systemic within a board’s jurisdiction – at least that’s my perception.
I do not understand your position that little fraud is involved in precincts in which the number of votes cast exceeds the number of voter registrations.
National Voting System:
While I understand the value of your suggestion to establish a national voting system and do not disagree with your objectives in principle, I have a strong aversion to anything that grows the size and scope of the federal government.
The federal government that exists today is a leviathan, substantially much larger than it has authority to be and has much more scope than is healthy. Even though the United States has the largest economy in the world, and by a large margin, not even the United States can afford the government it has created for itself. And much of that government exists outside the purview of constitutional authority.
This problem is not a Democratic-caused problem, nor a Republican-caused problem – both parties each have their fair share of complicity and culpability. Even the Supreme Court has engaged in government expansion with many of its decisions that are seemingly disconnected from both logic and the law. For example, the Supreme Court decided that an Ohio farmer who raises wheat for his own consumption and consumes all of it on his own property can legally be regulated by the federal government under the Commerce Clause even though his wheat never entered either intra- or inter-state commerce – there is something fundamentally and constitutionally wrong with such decisions and their consequences. There are countless examples of this kind of reasoning to be found in Supreme Court decisions since roughly the 1870s, but more significantly since the New Deal. Many of these decisions grew the size and scope of the federal government beyond the authority of the Constitution. And many of the problems we are living with today are caused by that fact.
Article II, Section 1, Paragraphs 2 and 3 of the Constitution leave the election of the President and Vice President up to state electors who are determined by processes chosen and developed by the states. There is no authority for citizen voting regarding these two offices in the Constitution. To establish a national election system without a constitutional amendment as you suggest is troublesome to me. I find the establishment of a national election system to address state and local voting to be even more troubling, even though it may be authorized by Article I, Section 4, Paragraph 1.
While you did not categorically exclude a constitutional amendment from your recommendation, I took your language to mean as much due to the absence of a specific reference to an amendment.
There is a history in this country of defaulting to the federal level whenever there are issues at the state level that are significantly problematic and broad. For most of these, there is no constitutional authority to do so, yet do so we have. For example, there is no authority to create a federal Department of Education when it is not only absent from the Constitution, but when the Framers described frequently and in great detail their fears regarding federal involvement in education. The Framers left education to the states for specific reasons. Yet we now have a Department of Education and a federally endorsed Common Core curriculum program for the states. As undesirable as that may be in itself constitutionally, this program either is now, or will soon become, tied to federal revenue sharing – the very kind of thing the Framers most feared.
Conclusions:
Despite the hand wringing of liberals, there is nothing in the new North Carolina voting law that is detrimental to voters or seeks to disenfranchise anyone. After more than 100 years of Democratic control of North Carolina politics, the General Assembly and the governorship, the people of North Carolina deliberately decided they needed change – substantive change. They made that decision for very specific reasons – some economic, some social and some political. The new General Assembly and governor have responded accordingly. After such a long time in power, it is expected that some Democrats view this change through a prism of personal loss – a loss that makes no sense to them given the content of Democratic and Progressive agendas, as well as their personal political priorities.
I see much of the criticism directed at this law to be more a partisan reaction to a general change in the state’s political direction than reasoned opposition to discrete elements of the law itself. The same people in opposition to the voting law are likely in opposition to many other decisions made by the new General Assembly. That is the nature of partisanship.
In my opinion, partisanship is dangerous – that’s why I am an Independent. Being an Indepedent allows me to see the issues, relevant facts and solution options more for what they actually are than I would be able to see had they been packaged and issued to me by a political party whose primary concern is its own agenda – which often may not include the intrinsic interest of the nation or its people.
My position on partisanship can best be summed up by Ibn Khaldun, the14th century Andalusian Arab historian who said the following in Al-Muqaddimah:
“If the soul is impartial in receiving information, it devotes to that information the share of critical investigation the information deserves, and its truth or untruth is clear. However, if the soul is infected with partisanship, for a particular opinion or sect, it accepts without a moment’s hesitation the information that is agreeable to it. Prejudice and partisanship obscure the critical faculty and preclude critical investigation. The result is that falsehoods are accepted and transmitted”.
Professor Hasen, thank you for the opportunity to exchange thoughts with you on this issue – I appreciate it. I also appreciate your engagement in the national discourse and what it brings to the table.
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