Whose Votes Count?: Voting Rights Legislation and the Democratic Process

Vol 12 Issue Winter

by

Gilda Daniels is an associate professor at the University of Baltimore School of Law. She is also a former deputy chief in the United States Department of Justice, Civil Rights Division, Voting Section.

During the 2011 state legislative season, voting rights took center stage.

We witnessed a dramatic proliferation of bills that could greatly affect access to the ballot. According to Bloomberg News, this year saw states passing the most election-related laws since 2003, which occurred shortly after the Bush v. Gore presidential election that exposed many inequities in our electoral system. Many of those laws were focused primarily on voting equipment, such as the movement to electronic voting machines. In the most recent surge of legislation, in many states, well-established measures that had made voting easier and more accessible to millions of voters were eliminated or made more difficult. Stopping voter fraud is the posited rationale for these laws. There is much more evidence, however, that qualified voters are disenfranchised by these measures than there is evidence of fraud. In determining whether new voting laws are sustaining or encroaching upon democratic principles, one must consider the impact that these laws could have on the outcome of an election.

According to the Brennan Center for Justice report, seven states now have restrictive photo identification requirements, i.e., require that voters show a government- issued photo identification card, such as a driver’s license, military identification, or passport. Other changes involve: voter registration laws that make it harder or near impossible for organizations on campus or in public squares to register eligible voters; the elimination or scaling back of early voting; and adopting procedures that make voting rights restoration harder for ex-felons.

The Brennan Center estimates that across the country, approximately five million voters will be adversely affected by these kinds of new rules. Bear in mind that in 2004, George W. Bush won reelection to the U.S. presidency with less than 3.1 million votes. Accordingly, the estimated five million voters affected by these new rules indeed matter. According to the U.S. Census in 2008, nearly 229,945,000 persons were of voting age in the United States. In the 2008 presidential election, 131,407,000 votes were cast in the U.S. presidential election and 122,586,000 votes were cast in the congressional races, or 57.1 and 51.6 percent respectively. In 2010, 324,564,000 persons were of voting age and only 86,785,000, or 37 percent, cast ballots in the midterm congressional elections. With such low levels of voter participation, the institution of restrictive election laws that make registration and participation more difficult will exclude even more voters from the polls. Participation levels for the presidential election could potentially fall below 50 percent, and midterm elections below 30 percent, which would allow less than half, and potentially less than a third, of eligible citizens to determine who governs the country. While much of the 2011 state legislation was passed to address voter fraud, our voter participation problem far outweighs any perceived or real voter fraud issues, which should necessitate passing laws that make it easier to vote, not harder.

The “crazy quilt” of election rules across the country, such as, which states require voter identification and what types of identification are permitted, whether a felony conviction disenfranchises otherwise eligible citizens, whether the state will have early voting, what days early voting occurs and under what conditions can you vote absentee, tend to create a whirlwind of conflicting and confusing rules that dissuade eligible citizens to participate and could certainly affect the outcome of elections.
Photo Identification Requirements

Thirty-one states have laws requiring voters to present some form of identification to vote in federal, state, and local elections. During the 2011 legislative session, many states limited the types of identification that would allow citizens to cast a ballot.

Many organizations argue that many Americans cannot afford to pay for the required documents needed to secure government-issued photo identification. As such, these laws impede access to the polls and are at odds with the fundamental right to vote. In total, more than 21 million Americans of voting age lack documentation that would satisfy photo identification laws, and a disproportionate number of these Americans are low-income, racial and ethnic minorities, and elderly. As many as one fourth of African Americans of voting age lack government-issued photo identification cards, compared to only 8 percent of their white counterparts. Likewise, 18 percent of Americans over the age of 65 do not have government-issued photo identification.

The American Civil Liberties Union (ACLU) believes that requiring voters to pay for an identification card, as well as the background documents necessary to obtain that identification in order to vote, is tantamount to a poll tax. Proponents of photo identification laws are quick to point out that their proposals provide for “free” ID for those without proof of identity.

However, the birth certificates, passports, or other documents required to secure governmentissued identification cost money. The ACLU estimates that all of the requisite documents cost $55–$165. People with disabilities, limited access to transportation, elderly Americans who never had a birth certificate and cannot obtain alternate proof of their birth in the United States, and women who have changed their names due to marriage or divorce often experience additional difficulties with identity documentation. U.S. Representative John Lewis described these laws as “schemes” that are “clearly crafted to affect not just how we vote, but who votes.”

Proof of Citizenship

In addition to voter identification requirements, some states also require that citizens provide proof of citizenship prior to casting a ballot. This is potentially problematic. According to a Lawyers’ Committee for Civil Rights Under Law study, more than 13 million people do not have ready access to proof of their citizenship. People with low incomes, the elderly, women, and people of color living in rural areas are among those least likely to have appropriate documentation. Citizens earning less than $25,000 per year are more than twice as likely to lack ready documentation of their citizenship as those earning more than $25,000, and as many as 32 million women of voting age lack documentation of citizenship reflecting their current legal names. Proof-ofcitizenship laws are far more likely to prevent American citizens from accessing the ballot box rather than to stop noncitizens attempting to vote illegally. Almost all of those impacted by the law are qualified voters lacking the required documentation.

Early Voting

Generous early voting periods, which include weekend days, facilitate voter participation. Early voting eases congestion at polling places on Election Day and improves the efficient operation of elections by reducing the ratio of poll workers to voters. Early voting periods also afford extra time to address registration problems. Given the flexibility early voting affords citizens, it is not surprising that many voters have taken advantage of this option. In 2008, 13 percent of all votes nationwide were cast during early voting periods. Additionally, early voting options are used more frequently by voters of color than by white voters. Reducing this option could certainly have a negative impact on voter participation levels.

Student Voters

In many states, students are not allowed to use their student identification cards as a form of valid photo identification at the majority of polling stations around the country. In 2008, the country witnessed unprecedented youth turnout during the general election. Enhanced residence prerequisites to registration have also been used in attempts to prevent students from voting where they attend school. Lastly, over 20 percent of people ages 18–21 do not have drivers’licenses.

Third-Party Voter Registration

The 1993 passage of the National Voter Registration Act (NVRA) signaled the advent of enhanced federal efforts to facilitate widespread voter registration. In addition to limiting the type of identification allowed to vote, some states also imposed restrictions on third-party registration efforts. For example, Florida’s 2011 H.B. 1355 shortens the period of time third-party organizations such as the National Association for the Advancement of Colored People (NAACP), the League of Women Voters, or political parties have to return completed applications to the state. The law also requires third-party registrars of voters to register themselves with the state and submit names and sworn statements of each person who will conduct registration activities on the organization’s behalf and sets potentially heavy fines for noncompliance. The fines and additional requirements make it less likely that organizations will conduct registration drives. Recently, a group of organizations  has challenged the Florida legislation in federal court arguing that it violates the U.S. Constitution and the National Voter Registration Act, which promote voter registration.

The restrictions on third-party registrations may also have a negative impact on minority voters and those with limited language ability, such as some Latino and Asian Americans. Fewer voter registration drives focused on language minority groups could result in fewer bilingual volunteers who can assist these Americans with the registration process and consequently result in fewer Latino and Asian Americans registered to vote.

Criminal Disenfranchisement

The area of felon disenfranchisement has received a lot of attention over the last two decades. These laws are not new. Laws taking away voting rights for committing certain felonies have existed since the early years of our country’s existence. Many states passed felon disenfranchisement laws after the Civil War as a means to eliminate newly freed and enfranchised citizens. In the late 1990s, many states began to review these laws and began to make it easier to restore voting rights, particularly to those citizens who were no longer incarcerated and had completed their probation and parole or who had committed nonviolent crimes. Approximately 23 states had passed legislation that restored voting rights to ex-felons or eliminated their lifetime bans.

Recently, two states’ governments decided to turn back the clock on voting rights: Iowa and Florida. In recent decades, both states witnessed its governors repeal or amend felon disenfranchisement laws that enabled hundreds of thousands of ex-felons to regain the opportunity to participate in the democratic process. In Florida, for example, then Governor Crist, streamlined the restoration process to make it less onerous to have rights restored. That, however, was reversed when Florida’s current governor changed Florida’s clemency rules to what are considered the most punitive in the country. Florida and Iowa effectively returned to a lifetime ban for felons, even those who have completed their sentences and are no longer under the control of the state.

An estimated 5.3 million citizens cannot vote as a result of felony convictions and nearly four million of those are not in prison but are living, working in the community, and paying taxes. Nationwide, 13 percent of African American men have lost the right to vote—a rate seven times the national average. According to the Sentencing Project, in 2004, Florida had more than 900,000 persons who had completed their sentences yet were disenfranchised because of its felon disenfranchisement and restoration laws. In Florida, nearly 20 percent of the disenfranchised are African American.


Conclusion

In sustaining our democratic form of government, we must vigilantly ensure free and fair elections and promote voter participation. The onslaught of legislation to address voter fraud should not overshadow America’s clear democratic principle of increasing voter participation. The two are not mutually exclusive. A renewed focus on creating opportunities to exercise the franchise is needed and will go far in sustaining our democracy.

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Insights on Law and Society is edited by Tiffany Middleton. She can be reached at tiffany.middleton@americanbar.org.