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January 01, 2012

Barriers to the Ballot Box: New Restrictions Underscore the Need for Voting Laws Enforcement

by Denise Lieberman

Today, we are witnessing the greatest assault on voting in over a century. A spate of new legislation, executive orders, ballot initiatives, and administrative practices “effectuate a trifecta of voter suppression,” making it harder to register to vote, to cast a ballot, and to have a vote counted. Not since the post-Reconstruction era that heralded poll taxes and literacy tests has there been so much government action conditioning access to vote—through new rules restricting voter registration, advance voting, voter identification, purge practices, and more. These new laws could impede access for more than
5 million eligible voters in 2012.

While of interest due to their partisan motivations and potential political consequences, the impact of these measures extends beyond electoral politics to the heart of how we define democracy—with potentially long-lasting implications. The phenomenon underscores a contentious debate—one that is playing out in legal challenges to these measures—of whether voting is a right that cannot be burdened absent rigorous scrutiny, or whether it is a privilege that can more easily be conditioned. These debates on how we condition voting reveal America’s distasteful schisms in privilege and power, race and class, and judgments about the worth of a person’s citizenship and humanity.

As a nation, we have long struggled with the concept of electoral democracy. Though not specifically delineated as a fundamental right, there are more constitutional amendments protecting the right to vote than any other, guaranteeing that the right to vote cannot be abridged on account of race, sex, language, ethnicity, religion, residency, payment of a poll tax, or age. The Supreme Court long ago explained that voting is “regarded as a fundamental political right, because [it is] preservative of all rights.” And despite the Court’s pronouncements that “[t]he right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government,” and that “every voter is equal to every other voter,” our voting processes have never reflected the ideal that all citizens have an equal opportunity to cast a ballot. From our nation’s beginnings, which limited voting to only white male landowners, we have fought bloody—indeed deadly—battles to expand access, paving the way for significant court decisions and landmark federal legislation like the Voting Rights Act, and later the National Voter Registration Act and the Help America Vote Act.

But legislative activity in the states since the 2010 midterm elections marks a sharp departure from the trend of expanding access, with more than 180 restrictive voting bills introduced in forty-one states since last year. My organization, Advancement Project, has characterized this as “the most significant rollback of voting rights in a century.” Today, through mechanisms reminiscent of the Jim Crow measures ended by those landmark cases and statutes—and no less insidious—some two dozen new voting laws in eighteen states (representing two-thirds of electoral votes needed to win the presidency) stand to make it more difficult, if not impossible, for millions of voters to cast a ballot—disproportionately African Americans and Latinos, young voters, low-wage earners, people with disabilities, and senior citizens. The result is not only legal inequality, but a lingering social malaise that strikes at our identity. “Voting is about basic human dignity,” says Pastor Kenneth Wheeler of Cross Lutheran Church in Milwaukee, one of my clients in a legal challenge to Wisconsin’s new photo ID law. “The right to vote is at the core of our citizenship. . . . We’re already facing extreme economic constraints, debilitating poverty, and social exclusion. This law only exacerbates the level of exclusion we face. Simply put, it devastates us. . . . Voting gives people hope. We have to underscore the right to vote as a sacred right.”

The Changing Face of the American Electorate

According to Pew Research Center, African-American voter turnout rose to 65 percent in 2008, nearly matching white turnout (66 percent) for the first time in our nation’s history. Youth voting was the highest in a generation. New voters in the lowest income and education brackets doubled from 2004 to 2008. Latino turnout rose to 50 percent—and is only likely to increase. In key battleground states, the number of eligible but unregistered Latino voters is in the hundreds of thousands or even millions, with another 8.1 million legal permanent residents who could be eligible for citizenship and could vote by this fall. In some states, like California, Texas, Florida, Arizona, Colorado, Georgia, New Mexico, and Nevada, the number of potential such voters is greater than the margin of victory.

New Restrictions on Voting

The record turnout of black and brown voters in 2008, along with census data showing the population of nonwhites rising fast, offers a glimmer of hope that the interests of people of color could more readily be heard in a nation fraught with a history of silencing their voices. This has not escaped those who stand to benefit from a less robust electorate. Conservatives who won majorities in statehouses across the country in 2010 have backed the coordinated measures, calling them necessary to prevent voter fraud. But a federal panel last year found little to no election fraud in the United States that could be addressed by these laws, and this is backed up by every academic study on the subject.

Proponents discount that the groups most likely to be harmed by these requirements—blacks, Latinos, the poor, and college students—are groups that tend to vote against their interests. Worse, proponents have defended these laws with many of the same arguments used to defend the voter suppression laws of earlier generations, by suggesting, for example, that the racially disproportionate impacts are not about race, but a result of “socioeconomic status,” or due to “differences in motivation, or lack thereof,” to get needed documentation, and that the burdens are “mere inconveniences”—arguments that have been offered in defense of our lawsuit challenging Wisconsin’s photo ID law. During debates on a photo ID proposal in Missouri this year, one senator told a voter who recounted a two-day, fourteen-hour ordeal to get a state ID, “If it’s that hard for you to get an ID, I question whether you should be voting at all.”

These new barriers stand to systematically disenfranchise voters and prevent realization of a more just democracy that reflects the nation as a whole. These include the following issues.

Photo ID Requirements

Voter ID restrictions have been introduced in thirty-eight states and passed in nine since 2011. While thirty states require voters to show some form of ID, these laws limit the forms of acceptable ID voters must show at the polls to a nonexpired government-issued photo ID. Approximately 11 percent of voting-eligible citizens—about 21 million Americans—lack a nonexpired state-issued photo ID, disproportionately African Americans, Latinos, young voters, the elderly, and people with disabilities, who are up to twice as likely to lack an ID. In fact, one in four African Americans nationwide lacks a state-issued photo ID. A University of Wisconsin study found that half of that state’s African Americans and Latinos lacked a Wisconsin driver’s license, the most common form of acceptable ID, and that among young voters, a whopping 78 percent of eighteen- to twenty-four-year-olds lack one. The rate of seniors without IDs tops 20 percent statewide, especially in minority populations.

Bettye Jones, a plaintiff in our litigation challenging Wisconsin’s photo ID law (described by one Wisconsin judge as “the single most restrictive voter eligibility law in the United States”), reflects a circumstance common to many African Americans of her generation—born in the South during segregation, she was born at home and never issued the formal birth certificate that is now necessary to procure a state-issued photo ID to vote. In court records, she describes her expensive, multimonth effort to get the needed documents as “harrowing.”

In South Carolina, where the Justice Department (DOJ) denied preclearance to the state’s new photo ID law under section 5 of the Voting Rights Act (noting that voters of color were 20 percent more likely to lack a state-issued ID compared to whites and were thus “disproportionately represented, to a significant degree,” among those who stood to be “rendered ineligible” to vote under the law), the local National Association for the Advancement of Colored People bluntly called the law “Jim Crow Jr.”

At a forum on voter ID laws in which I participated in St. Louis, the Rev. Al Sharpton, a vocal opponent of photo ID laws, spoke of the similarities to old Jim Crow laws: Now, he said, “We’re fighting ‘James S. Crow Jr. Esquire.’ He talks in a more refined way . . . but the result is the same.” U.S. Representative Emanuel Cleaver echoed that sentiment, noting that when he was young, “the poll tax was $3.50” to discourage blacks from voting. Now, he said, it’s been replaced by a $22 fee for the birth certificate needed to get a government-issued photo ID. Worse, the laws don’t fix a problem; in-person voter impersonation, the only malady addressed by a photo ID requirement, is exceedingly rare. One study found that such a requirement would not prevent one fraudulent vote for every 1,000 eligible voters disenfranchised.

Limits on Early Voting

Florida, Georgia, Ohio, Tennessee, West Virginia, and Wisconsin passed laws last year reducing advance voting. In 2008, 30 percent of voters in these states cast early ballots, with African Americans twice as likely to do so than whites. In Florida, 53 percent of African Americans cast early ballots in 2008 compared to 27 percent of white voters. In Florida, Monroe County Elections Supervisor Harry Sawyer Jr. says, “Limiting early voting options is a dangerous path which will only make it more difficult to vote,” not only eliminating opportunities to vote before election day, but increasing lines and wait times on election day to accommodate voters who would have voted early.

Voter Registration Restrictions

New voter registration requirements have halted voter registration drives in Texas and Florida. Florida’s law, recently enjoined by DOJ, requires registration forms to be submitted within forty-eight hours, requirements that State Senator Arthenia Joyner believes “will cripple voter registration efforts.” African Americans and Latinos are more than twice as likely as whites to register through a voter registration drive. In 2008, some 176,000 voters in Florida and 26,000 voters in Texas registered this way. This year, African-American and Hispanic voter registration has declined 10 percent in Florida, according to the Washington Post, with 81,000 fewer people registering to vote compared to the same period in 2008, according to The New York Times. We remain a long way from full participation; according to the Voter Participation Center, more than 35 percent of all eligible Americans—over 73 million citizens—are not registered to vote, with voters of color, young voters, and women making up the bulk of this group.

Proof of Citizenship

Several states passed laws requiring documentary proof of citizenship to register to vote. Tennessee’s law requires proof of citizenship only from voters the coordinator of elections believes to be noncitizens, opening the door to the kind of discretion that led to the racially discriminatory impact of literacy and “understanding” tests of the Jim Crow era, when passing the test was left to the discretion of whoever administered it. A challenge to Arizona’s proof of citizenship law is now awaiting review before the U.S. Supreme Court. State records show that between 2005 and 2007, about 31,000 people in Arizona had their registration forms rejected because they did not provide adequate documentation.

Rights Restoration

Executive orders, such as those signed last year by governors in Florida and Iowa, revoked existing policies giving persons with felony convictions the ability to regain their right to vote and make it harder for people with past criminal records to restore their rights after they have paid their debt to society. Florida is one of three states that strip those with past felony convictions of their voting rights for life. This ban dates back to the Reconstruction period and historically was targeted at crimes thought to be committed by African Americans. Today, nearly one in four African-American men in Florida cannot vote because of this system. The only way to restore one’s civil rights in Florida is through clemency from the governor, a burdensome and arbitrary process. The state’s new rules have disenfranchised 100,000 ex-felons in Florida who were eligible before the change to have their rights restored and vote in 2012.

Voter Rolls Purges

The newest tactic in the voter suppression playbook includes efforts to purge purported noncitizens from the voter rolls using flawed lists by matching voter rolls against motor vehicle lists, even though citizenship documentation is not required to get a driver’s license. In Florida, where the list has been found to have a 78 percent error rate, scores of eligible citizens have been targeted to have their names removed from the rolls if they don’t take affirmative steps to prove their citizenship. Eighty-seven percent of those on Florida’s purge list are minorities—and a majority are Hispanic.

The DOJ in June halted the program, saying that the state had violated section 5 of the Voting Rights Act and the National Voter Registration Act (NVRA). Many counties stopped the purge process amid concerns about the inaccuracy of the lists, which initially contained more than 180,000 potential noncitizens to be purged. As it became clear that eligible citizens were included on even a smaller list of 2,700 targeted by the state, lawsuits were filed.

My organization, Advancement Project, along with several partners, brought suit alleging that the purge practices violate the NVRA and section 2 of the Voting Rights Act, which prohibits voting practices that result in minority voters having “less opportunity than other members of the electorate to participate in the political process.” Moreover, the practice has a chilling effect on eligible voters. “People are in fear,” Lida Rodriguez-Taseff, a Miami lawyer working with my organization on the legal challenge, told the Miami Herald. “This is complicated and threatening.” This is not Florida’s first problematic voter purge. Back in 2000, some 12,000 voters—far more than the 537-vote margin of victory in the presidential election—were wrongly identified as convicted felons and purged from the rolls. The list was disproportionately made up of racial minorities.

Laws Make Their Way to the Courts

The new laws are now making their way to the courts, where some face scrutiny under section 5 of the Voting Rights Act, which applies to jurisdictions (mostly sixteen states in the South) with a history of discriminatory voting practices and requires preclearance by the DOJ or a U.S. district court before they can go into effect. The state must show that the law will not have a “retrogressive” or discriminatory effect compared to existing law. The DOJ, in its first rejection of such a law since 1994, objected to both South Carolina’s and Texas’s new photo ID laws, finding “significant racial disparities.” In South Carolina, they found that African Americans were 20 percent more likely to lack an ID; in Texas, the DOJ found that “Hispanic registered voters are more than twice as likely as non-Hispanic registered voters to lack such identification.” Both South Carolina and Texas have filed lawsuits seeking clearance of their photo ID laws, and in both, the future of this section of the Voting Rights Act is at stake.

The laws are also being challenged under section 2 of the Voting Rights Act, which prohibits the use of any electoral practice or procedure that results in the “denial or abridgement of the right of any citizen of the United States to vote on account of race or color.” Vote diminution occurs when a group has “less opportunity than other members of the electorate to participate in the political process,” if, “on the basis of objective factors,” it results in minority voters having “unequal access to the electoral process.” In our lawsuit challenging Wisconsin’s photo ID law under this provision, we have argued that the law “in its operation and results is functionally indistinguishable from the laws employed during the Jim Crow era to suppress the African-American vote,” by imposing “unnecessarily difficult” requirements and “procedural hurdles” that turn the voting process into a “test of skill” and the “engine of discrimination,” with the predictable result of suppressing the minority vote.

These cases and others will test the continued viability of the Voting Rights Act. Section 5 was reauthorized (with bipartisan support) in 2006 but is now subject to legal challenges that will likely be resolved by the Supreme Court to determine whether we have reached a level of equality rendering this federal oversight unconstitutional. The last two years have seen nine challenges to the constitutionality of this provision (compared to just eight challenges total in the law’s first forty five years).

The laws are also facing scrutiny under the Fourteenth Amendment, highlighting a contentious debate on the nature of the right to vote. The legal standard is a confusing hybrid balancing test, not the strict scrutiny standard applicable to infringements on fundamental rights (requiring the state to show that a law is narrowly tailored to a compelling government interest). Instead, under the less strict “flexible” balancing test used in Crawford v. Marion County Election Board, the Supreme Court upheld Indiana’s photo ID law, finding that the “limited burden on voters’ rights” was outweighed by the “precise interests put forward by the State as justifications for the burden imposed by its rule.”

There was less evidence of the burdens on voters in Indiana than is being revealed in the newest cases, and Indiana’s law is less restrictive than the photo ID laws passed in the last year. But had the Court been applying a stricter standard, as did a state court in Missouri (which specifically defines the right to vote as “fundamental” under its constitution), the result would likely have been different. The Missouri Supreme Court, applying strict scrutiny, found that Missouri’s photo ID law wasn’t narrowly tailored to a compelling government interest and that the state thus had not justified the substantial impairment of the right to vote that the law would create. We are making a similar argument now in a lawsuit challenging Pennsylvania’s photo ID law under its constitutional voting provisions. After the Missouri ruling, legislators sought to amend the constitution to carve an exception to the right to vote to allow for photo IDs; the ballot proposal recently failed in the courts as well. In Minnesota, after Gov. Mark Dayton vetoed a photo ID bill passed there last year, legislators also passed a constitutional ballot initiative, which is now being challenged in court.

The hybrid balancing test used in Crawford leads to arbitrary results. The government should have to demonstrate that it has a compelling justification before it can enact policies making it harder to vote and should have to show that the mechanism will actually advance that goal. But there is no affirmative right to vote that would require this. The United States is one of only eleven of the 119 democratic countries in the world that do not explicitly provide the right to vote in their Constitutions. Even the Afghan and Interim Iraqi constitutions guarantee the right to vote. The resulting patchwork of state and local rules gets arbitrarily applied, which not only has political consequences but impacts the social fabric of our nation. These disparities are a major obstacle to eliminating structural disenfranchisement.

Our legacy of voting in this country is not a proud one, and while the last century has seen a push toward expansion of the franchise, these new laws stand to turn back the clock. History tells us the dangers of this trend. The decade following the new voting measures of the post-Reconstruction era saw dramatic reductions of previously eligible voters. For example, Louisiana had over 130,000 African Americans registered to vote in 1896. It enshrined new voting amendments in its constitution in 1898 and by 1900, fewer than 5,000 African Americans were registered to vote. By 1910, only 730 remained on the rolls. The disenfranchisement lasted for decades until the civil rights laws began to dismantle this structure. Systemic disenfranchisement is long-lasting and will not be abated by the courts or DOJ alone. We are at a pivotal crossroads in American election law, and “the ability to shape our law remains in the hands of the American people,” said Attorney General Eric Holder at a historic speech on voting rights. “For all Americans, protecting this right, ensuring meaningful access, and combating discrimination must be viewed not only as a legal issue but as a moral imperative.”

The new laws stand to relegate millions of eligible voters to second-class citizenship and undermine the fabric of our democracy by limiting participation. It is imperative we understand the implications of these proposals or we are bound to repeat history.

Denise Lieberman is senior attorney in the Voter Protection Program for Advancement Project, a national civil rights organization that works to eliminate structural barriers to voting. She is also an adjunct professor of law and political science at Washington University in St. Louis, MO.