SIVACRACY.NET

My friend Joey Fishkin circulated this to his friends and family:

Friends --

I know it has been years since I've written to some of you. There are so many of you that I miss so much and I wish I could write a more personal letter. But this is urgent, so generic letter it is.

This election is the most pivotal and wrenching of my life. It's also very close. I'm writing this because I want to encourage everyone to do what they can in these last couple of days to help it come out right (more on that below).

I think we can win this election. I'm writing you from eastern Ohio, where my brother and I just arrived to help with some last minute get-out-the-vote, and to help monitor the polls on election day for election law violations. We were lucky enough to show up in time for a giant rally in the courthouse square in Warren, where thousands of people crowded in to cheer for Kerry. He gives a very good speech at this point, honed after dozens upon dozens of campaign stops in which he lays out his plans to improve the economic lot of the middle class, and his vision of an international order in which America again leads the world. I guess I had heard some of this, and Kerry was far away and there were some bright floodlights obscuring my view of him. So what inspired me more than Kerry himself was the faces I saw in the crowd. I saw real hope on people's faces. I don't want this hope -- and the hopes of the untold thousands of volunteers and workers who have thrown themselves into all this for the past months and years -- to get quashed as we endure another four years of Bush.

You don't need me to write you the long litany of reasons to work for Kerry's election. I think Bush's priorities and worldview are pretty clear to everyone at this point, as are Kerry's. But there are two things I want to add to everyone's list, just from my perspective as a law student.

The first is judicial appointments. Bush has been a shocking disaster in this area, much different than previous Republican presidents. He has abandoned the job of vetting appointees to the ultra-right-wing Federalist Society, which has obligingly offered up some of the most right-wing judges (for federal district and circuit posts) in American history. Some are anti-abortion activists; many want to eviscerate civil liberties in the name of the war on terror; and quite a few want to repeal the New Deal and the powers of the federal government that came with it.

Something I did not realize before coming to law school is that we are in the midst of a possible revolution in constitutional politics. It's hard to overstate the importance of what's going on, and it has nothing to do with the stale campaign sound bites from both sides about "litmus tests" and appointing fair judges. (Every law student and law professor -- liberal and conservative -- watching the debates about judges finds that stuff surreal: it doesn't touch on the massive change that is afoot.) The right-wing revolution we're living through is partly about undoing the massive grant of power the federal government won during the New Deal, and used in subsequent decades to pass anti-discrimination legislation. (It is also about allowing more entanglement of church and state, eviscerating abortion rights, and other familiar right-wing goals.) So far this revolution has been relatively quiet. Our balanced Supreme Court (four moderate progressives, two moderate conservatives, and three right-wing radicals, Rehnquist, Scalia, and Thomas) has only struck down a few major federal laws, such as the Violence Against Women Act (which would have made gender-motivated violence a crime that can be prosecuted without depending on the local police). But the intention is clear. Some have characterized part of the radicals' agenda as "anti-anti-discrimination": they are against those laws that give protections to particular groups, like women or racial minorities or (especially) gay people.

I don't have any illusions that Kerry will be able to nominate a truly liberal justice to the Supreme Court. The deck is stacked against that in Congress. But I have to tell you, just the prospect of some middle-of-the-road, smart judges coming on the bench, instead of the rabid radicals Bush would appoint, is very appealing. They will stop the right-wing revolution in its tracks. My law professors seem unanimous in the feeling that this election is the most pivotal they've seen in a long time, just because the biological clock is ticking on some of these Justices, and we'll know on Tuesday night (hopefully) whether or not it's safe to assume we're building on, rather than throwing out, the last 70 years of precedent since the New Deal.

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Now for the second thing. I spent this past summer with the Kerry campaign legal team in DC, working on state by state election law. We worked on laws of voter registration, voter list purges, how people get kicked off the voter rolls and how they can get back on. We worked on provisional ballots, electioneering and intimidation, et cetera. My main conclusion: there is a shocking amount of bad, bad law out there, law that disenfranchises lots of people. Some states kick people off the rolls who don't vote. Other states allow one person to "challenge" another's right to vote at the polls. many states disenfranchise felons for life, and allow sketchy procedures for making sure that felons (or perhaps those with similar names!) are removed.

I quickly noticed something about all this bad law. When you do statutory research on Lexis or Westlaw, like I was doing, at the bottom of the screen it always shows the dates when the statute you're reading was passed or amended. There was a pattern in the dates. The worst laws were from the 1890s or the 1950s and 60s. The end of Reconstruction and the time leading up to the Voting Rights Act. These were times when whites were writing laws to disenfranchise blacks.

There have been some efforts to challenge the worst of these provisions in court, on the grounds that they have a discriminatory purpose. A Florida lawsuit pointing out that Florida's felon disenfranchisement statute was put in to stop blacks from voting -- and is now having that effect as well -- actually made it through the federal district and circuit courts in Florida, leading to a searingly powerful decision by an 11th Circuit judge indicting the law and its history. But the 11th Circuit, which covers Florida, is packed with right-wingers these days, and it has decided to rehear the argument en banc, which means all together, so that it can overrule its more liberal member.

In the mean time, many of the old tactics are coming back from the dead, and they are serving exactly their original purpose: disenfranchising blacks. Challenges to voters -- mass challenges, in black neighborhoods -- are back in Ohio, Wisconsin, and other states. In some areas there hasn't been a single voter challenge in many years, and in this election there are hundreds or thousands.

Many of these challenges come from lists the Republicans compile by sending mail to homes in minority neighborhoods, collecting the ones that come back from the post office undeliverable, and then using that data to create a list of voters to prevent from voting. This tactic is completely illegal as a basis for challenges under various states' laws. And it also violates a consent decree that the national Republican party had to sign in the 1980s (after a previous round of shameful intimidation, challenge, and general disenfranchisement in which the Republicans posted hostile off-duty cops at black precincts, among other shenanigans) specifically disallowing this mail-based method of generating pretexts for challenge. But this may not matter. Some lawyers on our side say the idea is just to gum up the works on election day, making the voting process sufficiently slow, with sufficiently long lines, that some people will give up and go home.

The Republican strategy is unmistakable. True to Karl Rove form, they begin by getting "out in front of the story." About a week before the current wave of pre-election-day challenges began, Republicans across the country suddenly started talking about "voter fraud." That way, when it came to light that Republcian operatives are trying to knock tens of thousands of minority and poor voters off the rolls in many swing states, they would have planted an adequate pretext to justify what they were doing: they're just out to stop fraud.

These tactics recall what you might call the original sin of American politics: the disenfranchisement of blacks that was at the heart of American politics until the civil rights struggle. Akhil Amar, a law professor at my school, makes a good point when he argues that the continuing existence of electoral college itself is not about a compromise between large states and small states. It's a concession to the South. If we had a popular vote for President, states could only have influence by allowing their citizens to vote. But the way things are now, a state can disenfranchise half it's population, and the remaining voters still have just as much (or proportionately more) influence on the Presidential outcome.

The Bush administration has no shame about participating in this oldest political tradition of the racist South. They openly oppose black civil rights organizations like the NAACP; Bush not only refused to show up and speak to the group, but now we find out on the eve of the election that the Bush administration has the IRS "investigating" whether the NAACP unlawfully "intervened in a political campaign" when NAACP chairman Julian Bond attacked President Bush in a speech this summer.

We need to make sure Kerry wins decisively, just to send a message that all this is intolerable.

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It's hard to say how close this election really is. No one knows exactly what the relationship is between the set of people who answer pollsters (sometimes very low, around 20%!) and the set of people who vote. Part of the reason for that is that turnout depends on people like US: it depends on what people who care about this election do with the next couple of days and particularly Tuesday. I know that everybody has jobs and lives etc.; I feel very lucky to be a student right now so I can just truck off to Ohio.

But if you live anywhere even remotely near a swing state, and there's any way you can make the time, you can volunteer to help get out the vote on election day. There are two basic ways to do this. One is through the Kerry campaign itself. At this point the easiest way to get hooked up with them is probably to call the local office in whichever state you're near, and just find out how to get to the headquarters and what you can do. If you have a car that's especially helpful because there are often people who could use a ride to the polls.

Here are the local numbers for state HQs:
http://www.johnkerry.com/contact/

(For a good idea of exactly which states are in play to some or any degree, you might try Slate's "election scorecard." It's the best -- and I read many of them obsessively. The states listed there are, I think, the swing states.)

There are also third party groups, uncoodinated with the campaign, for whom you can volunteer in person or through phone banking (eg. http://www.moveonpac.org/)

If there's any way you can, take the time and do this. I don't think you'll regret it.

Love,
Joey