Monday, August 20, 2012

Anatomy of a Distortion

Have you ever played that kids' game where a message is whispered from ear to ear at a party or other gathering, and then the final version is compared to the original--often with hilarious or astonishing deviations?

Sometimes political communication ends up looking a bit like that game--except that the distortions are helped along by carefully chosen words that are intended to leave the listener with a mistaken impression.

The other day, the following poster, apparently originating with The American Center for Law and Justice, appeared in my Facebook newsfeed:


My first thought was that this had to be some sort of distortion. After all, to launch a lawsuit aimed at limiting military voting rights would be political suicide in an election year. Since there's no indication that Obama is suicidal--even in the political sense--something else must be going on. But what?

It didn't take long to find out. The Washington Post's Fact Checker and have helpful overviews. Here's my culling of the facts. Ohio used to allow early in-person voting up to the day prior to the general election, mainly to ease burdens on polling places on election day. But in 2011, the Republican controlled state legislature passed legislation that moved back the deadline for early voting to the Friday before the election--essentially prohibiting early in-person voting in the last three days leading up to the election.

But this legislation ran afoul of the Uniformed and Overseas Citizens Absentee Voter Act (UOCAVA), and the problems were resolved by exempting UOCAVA voters (which includes military personnel) from the Friday deadline. Everyone else, however, was now denied the right to do something they had been able to do in the previous presidential election: Turn up on the Saturday, Sunday, or Monday before the election to cast an early vote. Apparently, some 93,000 Ohio citizens voted during that time period in the 2008 election.

This is significant in part because, in the 2008 election, it seems that many African American churches took the opportunity afforded by early voting to drive church members to the county board of elections office after church on the Sunday before Election Day. In short, the new legislation could negatively impact voter turnout, especially the African American vote--which would likely hurt Obama.

So, the Obama administration initiated a lawsuit whose aim was to restore early voting privileges in these key days leading up to the election. The aim was not in any way to truncate soldiers' voting rights. It was to restore voting privileges that had been taken away from everyone but soldiers.

So how did that turn into the above poster?

Well, the explanation appears to be rooted in how the lawyers for the lawsuit made their case for restoring the three lost days of in-person voting privileges. Their argument was based on the fact that some citizens would be denied voting opportunities that others were being afforded--something they argue violates the equal protection clause of the constitution. According to the Obama campaign's filed legal complaint, the result of the Ohio bill is "arbitrary and inequitable treatment of similarly-situated Ohio voters with respect to in-person early voting." The complaint continues:
...both UOCAVA and non-UOCAVA voters are identically situated, i.e., they are qualified electors who are physically present in their home county when they desire to vote in-person at their county board of elections office prior to Election Day.
The proposed solution to this differential treatment was to restore the extra voting days to everyone, not to deny them to soldiers--but the language of "arbitrary" and "unconstitutional" was seized upon by Obama's  opponents. Here's how it's spun in a memorandum from the Romney Campaign's General Counsel:
In their lawsuit, the Obama campaign and the DNC argue it is “arbitrary” and unconstitutional to provide three extra days of early, in-person voting to military voters and their families. At least 20 times in their legal papers, they argue that there is no good reason to give special flexibility to military voters – and that this policy adopted by the Ohio legislature is so wrong it is unconstitutional.

We disagree with the basic premise that it is “arbitrary” and unconstitutional to give three extra days of in-person early voting to military voters and their families, and believe it is a dangerous and offensive argument for President Obama and the DNC to make. It is not only constitutional, but commendable that the Ohio legislature granted military voters and their families this accommodation. It is despicable for the Obama campaign to challenge Ohio’s lawful decision.
This way of framing matters led to more extreme distortions, such as what one finds in an article entitled "Obama Trying to Limit Military Voting Rights," on the ACLJ website.

Now behind all of this, there is a legitimate worry about the Obama team's legal argument, one which has been expressed by a number of military organizations: If the prior early voting rights policies are restored on the basis of the equal protection clause, the fear is that doing so might set a legal precedent, one in which extending special consideration to members of the military is more generally regarded as at odds with the equal protection clause.

This strikes me as a worry that needs to be taken seriously, although I'm not convinced it is substantiated--since the Obama campaign's legal argument rests on a very delimited similarity between UOCAVA and non-UOCAVA voters with respect to a very specific opportunity. It doesn't follow that soldiers are generally in the same situation as ordinary citizens, or that the distinct hardships created by military life could never serve as a legitimate basis for differential treatment.

Not being a legal scholar, however, I can't say for sure (although at least some legal scholars seem to agree with me). But it seems that the origins of the poster above (and similar messages) has its roots in this legal worry about a possible unintended side-effect of a lawsuit that is not meant to take away anyone's voting rights, let alone military voting rights.

In short, we have a progression of messages a bit like that kids' whisper game. We start with this:

A: "The Obama campaign says every Ohioan should get back the voting privileges that the new law has taken from everyone but UOCAVA voters. To deny this to other Ohioans--including veterans and police officers and a range of others whose life circumstances might lead them to benefit in similar ways from voting access on those three days--is unfair."

With the help of some people focusing in on the possible legal precedents that might be set, we move to this:

B: "Obama says it is unfair for enlisted military personnel to get extended voting rights that other Ohioans don't get."

And then, with the help of some careful phrasing of "B" intended to mislead, we move to this:

C: "Obama says enlisted military should be denied the extended voting rights that Ohio affords them because of their unique situation."


  1. Brilliant article! I appreciate the information. I've shared with others so that they also know the truth. The ACLJ is not what they try to appear to be. They are wolves in sheep's clothing.

  2. Thank you for this brilliant article. When this crossed my FB page I thought there must be missing information. Your article is the most articulate one I have seen since it made the FB rounds. In this modern time when words are diminished to texting, one has to wonder what meaning will be for the next generation.