Every day (or close to it) until November 4, a series of writers and thinkers will discuss the election over instant messenger for nymag.com. Today, Slate's Dahlia Lithwick and author Ayelet Waldman discuss Michelle Bachmann's anti-Obama blunder, the discouraging fight against incipient voter suppression, and George W. Bush's one enduring “raging success.”
A.W.: Hey, Dahlia, how's life in your un-American neck of the woods? Here in Berkeley we are spending our days drinking lattes, paying our taxes, wiping our children's behinds, and enjoying the prospect of Michelle Bachmann living out the rest of her life as a Denny's waitress in real America.
D.L.: Those of us residing in the non-real Virginia send greetings to the exoburbs of San Francisco. If someone can send mail explaining where — geographically — the "real" America begins and ends, it would help enormously when it comes time to file taxes.
A.W.: Well, it's clearly not out here, because from my window, I see only "Obama" signs, "No on Proposition 8" signs, and a few people walking Labradoodles and cockapoos.
D.L.: Michelle Bachmann. Sigh. Do we have to go there?? One of my lifetime credos has always been: Suspect anyone who sees Fox News as an end in and of itself…
A.W.: I know it's a tiresome subject, but where do they find these women? And why do I allow myself to be continually surprised that women can be, and are, just as ignorant and crass as male politicians? Someday the lessons I learned in my hairy-armpitted Wesleyan days will finally abate, and I will stop expecting more of women than I do of men. After all, Jim Inhofe doesn't surprise me. He depresses me but doesn't surprise me.
D.L.: Well, for starters, you probably like to believe that women think before they talk. Bachmann suggests otherwise. Like me, you probably thought that if women do anything better than men, it's nuance. Hmm. Not so. Does it comfort you at all that Bachmann's stupid comments may have helped snatch electoral defeat out of the jaws of victory for her?
A.W.: It does indeed. I have myself donated happily to her opponent. That incident is, I have to say, one of the more enjoyable things that has happened in this election cycle. It might just delude me into thinking that justice is possible.
D.L.: I wonder if voters are harder on women who say moronic things than they are on men? I.e., if a man had said the same dopey crap about Obama, would he be losing an election today? Or is Bachmann (and Palin too) a victim of the fact that we love to watch gorgeous women screw up on YouTube more than men?
A.W.: Interesting question … I think there is a certain zoo-animal quality to it. It is, after all, the only reason the cable networks have people like her on the show. God knows the country is replete with neo-fascistic blithering-idiot congressmen who have yet to receive the privilege of airtime.
Now, if I weren't in such a state about the bogus "voter fraud" pseudo-stories being trumpeted nonstop on Fox News.
D.L.: Yes, the 24-hour jumped-up vote-fraud "crisis" that has Fox News anchors spitting goo about "stolen elections." It would be funny were it not for the fact that every damn time they repeat the lie about Dems stealing elections, it undermines "voter confidence" that our system of voting is fair. I wrote about this last week in Slate. Chipping away at voter confidence allows the GOP to enact ever more draconian laws that have the effect of suppressing poor and minority votes. That's the whole point. Blather about vote fraud today. Bounce blacks and Hispanics off the rolls next year!
A.W.: Terrific piece. This is, I think, the single most important issue of the election cycle now. The idea that this election might once again be decided in the courts is chilling.
I cannot tell you how many times I've had to explain to progressive, Democratic voters, that there is no fraud, that ACORN is doing what it is legally required to do, and submitting the bogus registrations, tagged in order to make clear to the boards of elections that they are likely false. But somehow, again, the Republican voter-suppression goon squads have managed to distract the country. They are like magicians flickering their fingers in the air in order to keep the audience's eyes off the real trick.
D.L.: One of the things that makes me frantic about the fraudulent vote-fraud coverage is that the True Believers speak interchangeably about voter-registration fraud (i.e., the easy-peasy act of drinking a Bud and registering Daisy Duck to vote) and polling-place vote fraud (i.e., the vastly more complicated act of procuring for oneself a Daisy costume, making up some fake Daisy I.D. and then risking a felony conviction for voting twice). Vote fraud doesn't happen because it's (a) stupid and (b) hard and (c) kinda pointless. Registration fraud DOES happen because it's (a) stupid and (b) easy and (c) basically costless. That's why ACORN turns in its own problematic registration cards!!
A.W.: Exactly. have you been following the Wisconsin story? The GOP advertised for veterans and off-duty cops to work at "inner city (more challenging) polling places." I.e., they are large men to loom threateningly over voters in minority districts. Goon squads to suppress African-American votes. This kind of thing reads out of some early-sixties Alabama news story.
D.L.: And you are right to say that what the goon squads do in response to claims that Dems are out there gaily voting six times in funny noses and mustaches is far worse: They intimidate and harass minority voters with flyers claiming that voters will be arrested for traffic violations when they show up on Election Day, or hire thugs as you note, in Wisconsin, to look "intimidating." Since when are Americans supposed to roam free and "challenge" the validity of other voters?
A.W.: And that's precisely the law that's on the books in some states. Voters are entitled to challenge other voters.
D.L.: I am scared too. Scared that, in the face of those types of intimidation, threats, and the vile voter purges that don't even become known until November 4, that the only recourse left is to file a million lawsuits at 3 p.m. November 4. The definition of "too little, too late."
A.W.: Precisely. I think the Obama campaign is doing what it can — they had that victory in Michigan when the local Republicans sought to use rolls of home foreclosures to challenge voters — but if the only way to fight this is state-by-state, issue by issue, then I fear we lose. There is simply too much of this kind of thing going on. For example, states are engaging in wide-ranging voter-roll purges.
D.L.: And the truly scariest part of duking this out in the courts on Election Day? If we learned anything at all from Bush v. Gore, it's that hastily crafted, pseudo-"pragmatic," and highly ideological decisions about voting rights have zero to do with "the law" as you and I conceive of it.
A.W.: It's perfectly legitimate, of course, to purge rolls of dead people, of people who have moved. There is even an argument, I suppose, for purging the rolls of someone who hasn't voted in many years (although I have a hard time understanding why it's necessary). But the law precludes state governments from purging so close to Election Day, and yet we are seeing those purges happen. So what's an honest voter or campaign's only recourse? To file suit seeking an injunction against those purges.
D.L.: The most disheartening part of the history of Crawford, the Supreme Court decision on Indiana's harsh voter-I.D. law last year, wasn't even the goofy result (upholding the law because even if there is no such thing as vote fraud, people believe in it, as they do Elvis sightings). The worst part was that until the case arrived at the Supreme Court every judge decided with their party in that case. Republicans found for the Republicans, and Dems for the Dems. It's like they were living in wholly separate election-law worlds that never intersect at all.
A.W.: Remember when we were in law school and we had a fuzzy notion of jurists as individuals devoted to the law, to the Constitution, rather than to a partisan agenda? Justice Souter is a perfect example of a jurist who considers his job to be to interpret the law, not to further a political agenda. And yet he's demonized by the right.
D.L.: It's odd that most cases — truly most — get resolved that way. But invariably the hellishly partisan ones — guns, Gitmo, God, and now voting — might just as well be jurists pulling the lever for their party. It's like once the passions kick in, judges can't see any straighter than the rest of us.
A.W.: The judge I clerked for in the Northern District of California, Fern M. Smith, was appointed by Reagan, and was no liberal, and yet political hackery played absolutely no part in her judicial decision-making. And yet on all levels now the courts are poisoned by the last eight years of appointments that have had little to do with qualifications and everything to do with party affiliation. I have to say that I hold Bill Clinton in some part responsible for the current state of the judiciary. After all, he left an empty bench for Bush to cram full of party hacks. I realize that Clinton faced tough opposition in the Senate to his appointments, but if he had focused on this most enduring presidential legacy, we might not be in quite the same fix we're in.
D.L.: I think history will remember George W. Bush as a raging success in one way. He really did pack the federal bench — not just at the high court but in all the lower federal courts and appeals courts — with "movement" conservatives. This is not Sandra Day O'Connor or even Anthony Kennedy. These are Federalist Society guys who have been hydroponically bred to uphold executive power, chip away at Roe, restore the primacy of business over workers … They really believe in whatever it is they bring to the bench. Talk about fuzzy. If liberal jurists are drinking any Kool-Aid, it's clear, low calorie, and low carb.
A.W.: Just like I find the bullshit voter-fraud stories maddening, so do I find the conservative bellowing about "judicial activism" maddening. Never in the history of the country have we seen an activist bench like the one foisted upon us by the Republican machine.
D.L.: But in spite of that, do you have any reason to believe a President Obama would appoint ideological counterparts to an Antonin Scalia or Clarence Thomas to the high court? He won't. He will appoint moderates. Sigh. This is how you win the battles and lose the war. You are right. Bill Clinton is to thank.
A.W.: Yes, I think Obama will appoint moderates by and large. Because the truth is he is a moderate in many ways. But I think he prizes intellectual honesty above all, and we'll see truly competent and qualified judges. Wouldn't that be a change?
Back on the voter-suppression issue — I'm worried, too, about another Palm Beach. Have you seen the stories about the North Carolina ballots? They are designed so poorly that voters are coming out believing they've voted the straight Democratic or Republican ticket, without understanding that they had to vote separately for president.
So what happens next, Dahlia? What do we do about this? How do we combat what is shaping up to be a massive voter-suppression campaign, the likes of which we've never seen before?
D.L.: That last question is the biggie. And the only easy answer is that if this isn't a close election, vote suppression and intimidation (although it will happen) won't matter. If we have to rely on courts making hasty calls, we are in trouble, especially in light of the transformed federal judiciary. I guess the "answer," to the extent there is one, is to hope that there will only be a handful of nutjobs and bullies who resort to self-help. It's to hope this country — with its history of literacy tests and poll taxes — knows it is better than bullying voters at the polls. I know it's scary when the GOP officially sanctions vote caging and voter-roll purges. But let's maybe have faith in our better selves?
A.W.: Yes, faith in our better selves is, after all, what Obama is appealing to. If our margin is large enough, they won't be able to steal another election. However, I'm willing to put my money on a close race, and that will mean that if North Carolina, for example, tosses away another 92,000 presidential votes, like it did in 2004, or if the Wisconsin Brownshirts scare away a few thousand voters, or if the Republican secretaries of State manage to purge the rolls of a few hundred thousand new voters, we'll be back where we were eight years ago. And that, my friends (read with scary McCain voice), is a terrifying thought. I'm about ready to crawl into bed and pull the covers over my quaking head, but instead I think I'll get out there and make some calls, donate some money, and plan on traveling to a swing state. The only effective cure for anxiety is activity.
D.L.: Well, on that grim note, I send you best wishes from 100 miles outside of the D.C. suburbs, a land once known as "Virginia" but now known only as "Not."
For a complete and regularly updated guide to presidential candidates Barack Obama and John McCain — from First Love to Most Embarrassing Gaffe — read the 2008 Electopedia.