Panelists on the Aug. 6 American Bar Association program “Post-Shelby Voter and Election Laws: Necessary Measures to Prevent Voter Fraud, the Result of Budgetary Limitations, or Denial of Access to Justice” divided down the middle and never found common ground.
The National Conference of the Administrative Law Judiciary's Chair Elect Mary Kelly photographs the panel (R-L): Cynthia Nance, Rep. Paul Stam, Myriam Perez, Hans von Spakovsky and Sherrilyn Ifill.
“Voter ID laws won’t keep voters from the polls,” said Hans von Spakovsky, manager, Election Law Reform Initiative, Heritage Foundation, and an advocate of such laws. “None of the horrible, predicted problems have occurred. None.”
“Texas has the most stringent voter IDs, “said Sherrilyn Ifill, president and director-counsel of the NAACP Legal Defense and Educational Fund, Inc. “And the selected IDs were the ones African-Americans were most likely not to have. This is democracy diminished.”
Spakovsky, Ifill, Myrna Perez, deputy director of Democracy Program from the Brennan Center for Justice, and Paul Stam, speaker pro tem for North Carolina House of Representatives, staked out positions early on and stuck to them during a lively, intense discussion moderated by Cynthia Nance, dean emeritus and Nathan G. Gordon Professor, University of Arkansas School of Law.
The discussion about the pros and cons of recent voter ID laws comes out of the elimination of the pre-clearance mandate, a key section of the landmark 1965 Voting Rights Act.
In 2013, in Shelby County (Alabama) v. Holder, the U.S. Supreme Court eliminated the pre-clearance requirement by the U.S. Department of Justice or the D.C. Circuit Court of Appeals of any changes in voting laws or procedures by states with a history of voting discrimination. Chief Justice John Roberts, speaking for the 5-4 majority, wrote that the nation had changed in the nearly half century since the landmark Voting Rights Act became law. Blatant race-based discrimination, he said, was rare.
Justice Ruth Bader Ginsburg warned in her dissent that eliminating pre-clearance would result in a return to racial discrimination and disenfranchisement
And freed from pre-clearance, legislatures in 17 states adopted new laws: stricter voter ID requirements, elimination of or shortened and early voting days and out-of-precinct voting and a variety of other provisions.
A spate of recent court decisions have sided with opponents of the laws whose sole purpose civil and human rights groups argue is to suppress the minority vote. The biggest rollback to voter ID laws by courts in recent months has been to North Carolina and Texas voter ID laws.
North Carolina’s restrictions on early voting and same-day registration “target African Americans with almost surgical precision,” according to the federal appeals court which overturned the state’s law. Another federal appeals court ruled against Texas’s ID law citing its disproportionate effect on racial minorities. More than 600,000 Texans, disproportionately African American and Latinos, lacked one of the forms of identification required under the Texas law.
“It’s not only African American voters that Texas is worried about,” said Perez about the law. “It’s the growing Latino political strength. The purpose of these laws is to shave people out of the electoral process.”
States maintain that such laws prevent voter fraud, but courts cite study after study in their decisions that there is virtually no evidence of contemporary in-person voter fraud.
State Representative Stam and Spakovsky, who support voter ID laws, said that 90 percent of eligible voters have some form of voter identification.
“I represent the 10 percent who don’t but still want to vote,” said Perez.
There is no constitutional right to early voting, Spakovsky said, or many of the other voter ID measures that opponents object to and, consequently, no violations of federal law.
“Putting these kinds of barriers in place results in violations of federal law,” said Ifill.
The program, sponsored by the ABA Judicial Division, was initiated by Mary Kelly, the chair elect of the National Conference of the Administrative Judiciary, a conference within the division, after Alabama passed a voter valid photo identification mandate in 2014 that closed or reduced services in 34 Department of Motor Vehicle offices throughout the state, many of which were in minority and poor counties, she said.
“I wanted leading experts to examine whether such laws promote the rule of law and access to voting or act as a disparate barrier worthy of the ‘blast from Jim Crow past’ critique,” said Kelly.