That’s the word used recently by the New York Times to describe the actions of Ohio Republicans to prevent some of the state’s citizens from voting in the upcoming presidential election.
The Paper of Record didn’t pull any punches in describing the behavior of Secretary of State Jon Husted and the Ohio General Assembly in cranking out legislation designed to suppress the vote. Neither did U.S. District Court Judge Algenon Marbley, who presided in the lawsuit which challenged some recent voting restrictions imposed by the legislature.
“Make no mistake: the court is deeply troubled by the flurry of voting-related legislation introduced during the time period in question, all of which sought to limit the precious right to the franchise in some manner, and most of which was a peripatetic solution in search of a problem. The court agrees, moreover, that the Republican-controlled General Assembly’s frenetic pace of introducing such legislation reflects questionable motives, given the wealth of other problems facing the state which actually needed solutions.”
Judge Marbley added a not-too-subtle warning. “If the dog whistles in the General Assembly continue to get louder, courts considering future challenges to voting restrictions in Ohio may very well find that intentional discrimination is afoot.”
Intentional discrimination? As attorneys like to say, stipulated.
But what if the rest of us, laypersons and non-lawyers, had another, not-too-subtle descriptor for intentional discrimination? Full disclosure: No, I don’t believe that black helicopters are flying over our cities at 2:00am and performing surveillance as part of a UN conspiracy to do us harm. But what if the actions of the Ohio legislature, along with more than 30 other Republican-controlled bodies that have restricted voting rights in the last several years, were part of a real conspiracy to do potential voters harm?
Conspiracy. That’s worse than intentional discrimination. And that’s much worse than shameless.
A layperson wonders, when two-thirds of state legislatures pass measures that, in Judge Marbley’s words “limit the precious right to the franchise in some manner,” is this merely intentional discrimination, or should it be called what it really is?
So what about use of the term conspiracy to illustrate or even define the actions of Republican legislatures around the country that make it more difficult for American citizens to exercise their constitutional right to vote? In fact, 17 states now require a photo ID, while others require several forms of identification. Did these new voter restrictions happen spontaneously, or were they part of a shameless pattern to promote intentional discrimination?
Inasmuch as we’re on the topic of voting rights, intentional discrimination, and examining the use of language in crafting law, here are some other words to consider: Enterprise. Pattern. Injury. Organized. Activity. Interstate. Racketeering.
These terms and others are part of the landmark legislation formally known as Title IX of the Organized Crime Control Act of 1970, or more commonly known as the Racketeer Influenced and Corrupt Organizations Act, or RICO. Put together, they make an interesting stew.
According to the US Legal website, “ the scope of the statute is not strictly limited … and has a far-reaching civil enforcement scheme covering a wide spectrum of objectives including insuring integrity in the marketplace.”
Or perhaps insuring integrity in gaining access to the voting booth.
Certainly, the RICO statute has been controversial throughout its history, and it has been used to prosecute organizations not directly involved in organized crime. But there is one other passage from the US Legal website that might offer some encouragement for those wanting to look further at the statute: “Courts have held that the RICO Act’s applicability is not limited to members of organized crime and hence no connection with organized crime need be shown. The RICO Act provides for criminal penalties of imprisonment, fines, and forfeiture for violation of its provisions.”
One of the most noteworthy uses of the RICO Act came in a 1994 U.S. Supreme Court case between the National Organization of Women and Operation Rescue, A Right to Life organization that famously blocked access to legally operated abortion clinics.
In its decision, the court “determined that the term “enterprise” could include an individual, or group of individuals, a partnership, association or other legal entity. The anti-abortion groups were found to have “conspired to shut down abortion clinics through a pattern of racketeering activity…”
Without being guilty of understatement, the determination of the court in this 1994 case needs to be explored more fully as we examine the proliferation of voter suppression legislation in this country and why it should be examined to see if the RICO elements of enterprise, pattern, injury, organized, interstate, activity, and racketeering are present, along with other aspects of the statute.
In order to start such an examination, we need to identify the prime suspect that would fit the definition of the enterprise responsible for the wave of voter suppression laws. Look no further than the American Legislative Exchange Council, or ALEC, as an interstate enterprise organized for the purpose of providing model legislation (read: templates) to legislators that otherwise injures potential voters by adoption in Republican-controlled legislatures.
An action against ALEC under the RICO statute would prove fascinating because not only is this organization determined to influence legislation in every legislative body in this country, but the very members of the organization are themselves legislators. Worse yet, when we consider those key elements found in the statute, we pause to wonder if, indeed, ALEC is nothing more than an interstate enterprise engaged in organized activities that result in injury to others and performs these activities under cover of law.
To its credit, the NAACP issued a report nearly five years ago that warned about the effectiveness of ALEC in suppressing voter rights.
“The heart of the modern block the vote campaign is a wave of restrictive government-issued photo identification requirements,” the NAACP report states. “In a coordinated effort, legislators in thirty-four states introduced bills imposing such requirements. Many of these bills were modeled on legislation approved by corporations and politicians through the corporate-funded “American Legislative Exchange Council (ALEC)…”
If there is a smoking gun to forever prove the existence and origin of an organized, interstate, voter suppression enterprise that might meet the test of racketeering activity, it is this 30-second clip of an address by ALEC founder Paul Weyrich, who in 1980 said that “our leverage in the elections quite candidly goes up as the voting populace goes down.”
Who better than Paul Weyrich, no believer in the democratic process, to explain how ALEC and other organizations must subvert the democratic process in order to win. The ends, after all, always justify the means.
In thinking about the enterprise that has subverted democracy, is it a pipe dream to think that some prosecutor somewhere could build a case against ALEC under the RICO Act? Perhaps. On the other hand, let’s hope that a nucleus of common citizens can raise the alarm and demonstrate there is at least one organization that appears to be an enterprise, acting in an organized fashion, that shows evidence of interstate activity which appears to be racketeering in nature and injurious to some individuals who wish to exercise their right to vote. Add those elements together and they spell R- I- C- O.
In January. Plunderbund published a five-part series of articles on the topic of constitutional reform. One of those articles contained this proposed constitutional amendment:
Amendment 28. Voting as participation in the democratic process. The act of voting is essential to our republic through the participation of citizens who give their consent to be governed. Voting is therefore a fundamental right of citizenship and shall not be infringed by legislation, administrative action, or by methods that create barriers to citizen participation in self-governance.
Wouldn’t it be the ultimate pipe dream to think that someday in the future, a federal grand jury might indict legislators for conspiracy under the 28th Amendment as well as the RICO Act for infringing the voting rights of Americans, “a fundamental right of citizenship”? We can only dream.
In the meantime, shall we be satisfied with the term intentional discrimination? Better yet, how about conspiracy? In your own courtroom, you are the language judge.
Denis Smith is a retired school administrator and a former consultant in the Ohio Department of Education’s charter school office. He writes about education issues as well as politics and constitutional reform.
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