Welcome to another edition of “What’s the Deal” the blog that feels that since it’s now being written in Washington, D.C., it should tackle a politically divisive issue.
In this week’s blog we examine the controversial new Voter Registration Laws that have been enacted, or are being proposed in several states around the country. The current debate is whether these laws to protect against voter fraud are discriminatory and prevent American citizens from voting. The debate has a certain political tint to it as well because many people who are against the Republican led laws say they will keep young people and minorities from voting, populations who are historically liberal or pro-Democratic.
We’ll of course discuss the historical context of Voter Registration Laws and Voter rights laws that put some perspective into the debate. (But I think you saw that coming)
Many states have passed Voter ID laws since 2002’s “Help America Vote Act” put in place voting requirements. 34 states are considering or have heard new legislation on toughening voter registration laws since 2011, and currently 31 states require some sort of identification at the polls (see image). Defenders of the laws say they will prevent voter fraud, and that they don’t discriminate against certain voters; they also contend they are constitutional, citing the 2008 Supreme Court decision upholding Indiana’s Voter ID law, affirming that states have a “valid interest” in improving election procedures and preventing fraud. Other measures to reduce fraud include reducing early or absentee balloting.
Opponents of the laws contend that voter fraud is not actually a problem, that the 2002 Help America Vote Act already requires ID at the polls and there are harsh penalties for those who commit voter fraud. Opponents also contend that the Republican written legislation targets minorities and young people (demographics that favor liberal candidates) because issuance of Govt. Issued ID is not widespread enough, and is a painstaking process for many people (even if it is free), voter registration drives have been closed, former felons have difficulty restoring their voting rights upon release, and the cancellation of early election/absentee ballots affect out of state college students, military personnel etc..
These arguments have gone back and forth over the past 6 months, but the bottom line legally is that requiring a Government ID to vote is constitutional unless the law violates the 1965 Voting Rights Act (and their subsequent provisions). With that in mind, this is the decision reached by the Justice Department over South Carolina’ s new voter ID law in December 2011:
“The Justice Department held that South Carolina failed to prove that the law would not have a discriminatory effect. Minority voters in South Carolina, according to data the state provided, are 20% more likely than white voters to lack the required photo ID; 81,938 registered minority voters have none. The law exempts voters who suffer from “a reasonable impediment”, but the Justice Department found this wording imprecise, and hence subject to capricious enforcement.”
So, since the discrimination of minorities and violation of the 1965 Voting Rights Act is the primary worry of opponents of the laws, we should take a peek at the history of voter discrimination against minorities, especially blacks (the impetus for the Voting Rights Act).
The Reason We Implemented the Voting Rights Act:
Prior to the Civil War and the enactment of the 15th Amendment, only a few Northern states allowed free blacks to vote. Outlawing slavery, defining citizenship, and allowing any male (regardless of race, color, or former servitude) to vote were the key amendments to come out of the Civil War (13th, 14th, and 15th). But of course, these new laws were only enforceable as long as Union troops stuck around for reconstruction to enforce them.
During that time, former slaves and free blacks in South had their first chance to vote, and took advantage of it, turning out in large numbers and even electing black congressmen. As soon as the troops and their entourage of “carpet baggers” returned North of the Mason-Dixon line in 1877, blacks saw their voting rights (and their civil rights) revoked in a series of measures by several states.
The Hayes-Tilden disputed Presidential election of 1876, you all remember, resulted in a compromise that removed Union troops from the reconstruction effort in the South in return for a Republican (Hayes) winning the White House. This compromise resulted in a climate which allowed terrorist groups like the KKK and White Camellia to use violence to keep blacks from voting, and states using fraud to discount legally cast votes by blacks.
The return of control of the state to white legislators gerrymandered new district boundaries to cut off blacks from voting in more populous areas. In the 1890’s, further disenfranchisement occurred at the polls by Southern states instituting poll taxes, literacy tests, vouchers of “good character,” and disqualification for “crimes of moral turpitude.”
The 1896 landmark case Plessy v. Ferguson solidified the separation of blacks from making decisions in society, making disenfranchisement and the culture of discrimination in the South very difficult to dislodge. The subject of segregation and Jim Crow laws is very well known and doesn’t pertain directly to our subject, so we’ll bypass that for the moment.
A few important judicial decisions and legislation paved the way for the Voting Rights Act, and are worth noting at this point:
- In Guinn v. U.S. (1915) the Supreme Court voted down an Oklahoma law that prevented blacks from voting based on a “Grandfather Clause” saying that descendents of enfranchised (enslaved) people could not vote.
- In Baker v. Carr (1962) the Supreme Court ruled that legislative districts that gave more voting power to smaller populations (ie. white counties) violated the equal protection provision of the 14th amendment. This was also found true in Reynolds v. Simms (1964) and Wesburry v. Watson (1964) and suggested that certain apportionments might unconstitutionally dilute the voting strength of racial minorities in Fortson v. Dorsey (1965).
- In Civil Rights Legislation from 1957 – 1964, the Attorney General was given authority to intervene in and institute lawsuits seeking injunctive relief against violations of the 15th Amendment.
What did all these decisions and laws accomplish? Well, it didn’t exactly stop states from continuing the literacy tests, poll taxes, and vouchers of good character. So something big was needed from the Federal Government to actually enforce the 15th Amendment, especially after racial violence in the March on Selma, Alabama and the murder of two civil rights activists prompted such action. President Johnson called for a Voting Rights Act and signed into law the Voting Rights Act of 1965 which aimed directly at the disenfranchising state voting laws: —First, it disallowed literacy tests as measures for denying the right to vote. A later Supreme Court case also ruled poll taxes unconstitutional (Harper v. Virginia State Board of Elections 1966) but most importantly:
- the Act contained special enforcement provisions targeted at those areas of the country where Congress believed the potential for discrimination to be the greatest (read: the South).
- Furthermore, Section 5 covered jurisdictions covered by these special provisions could not implement any change affecting voting until the Attorney General or the United States District Court for the District of Columbia determined that the change did not have a discriminatory purpose and would not have a discriminatory effect.
- Further, in those counties where a federal examiner was serving, the Attorney General could request that federal observers monitor activities within the county’s polling place.
What we need to remember from the 1965 Voting Rights Act is this:
A sharp rise in registration of black voters, and most importantly, a collective effort that successfully implemented and enforced the 14th, and 15th Amendments, essentially the legal documents of victory in the civil war. Renewal of the Act over the last 41 years shows that the laws still need protection and enforcement, though we have made strides in a culture of disenfranchisement (ie. eliminating the need for voting examiners).
These provisions are vitally important to understanding not only the development of the Civil Rights movement, but set the agenda for the current state voting laws.
What’s the Deal? Do These New Voter ID Laws Break the Voting Rights Act?
To best answer this question, we should detail the facts and arguments from both sides and then conclude how best to resolve the issue.
First, representing the side of the State Voter ID laws: the Heritage Foundation and their Senior Fellow Hans Van Spakovsky of the Civil Justice Reform Initiative. Here are their main points in favor of the Voter ID Laws that are pertinent to the debate:
- States have the authority over most elections, including voting requirements. The federal government and state governments have a shared responsibility to ensure the security and integrity of the election process.
- Requiring ID to vote enjoys widespread, diverse support
- The evidence of voter fraud from specific cases shows what types of laws and regulations are most effective in preventing and deterring fraud.
- There are many documented cases of voter fraud affecting the election system:
- A Chicago Grand Jury reported that voter theft and voter registration fraud resulted in 100,000 fraudulent votes being cast in the 1982 Election.
- 80,000 illegal aliens registered in Chicago were also voting.
- The 1997 Miami mayor’s race was overturned because of more than 5,000 fraudulent absentee ballots.
- A mayoral election in East Chicago, Indiana, in 2003 and a state senate race in Tennessee in 2005 were also overturned because of voter fraud.
- Numerous employees of ACORN have been convicted of voter registration fraud
So, Mr. Spakovsky and the writers of the Voting ID laws feel that the abundance of voter fraud caused by a failed voting system requires these state laws to close voting loopholes.
What about the other side of the debate? Representing the opposition to the state Voter ID laws, the Brennan Center for Civil Justice at NYU, the Center for American Progress, the ACLU, NAACP, and a report from the Center on Budget and Policy Priorities. Here are their main points:
- Some state laws require Govt. Issued photo ID, which 11% of American Citizens don’t have (21 million Americans)
- A disproportionate # of people w/o Govt. Issued IDs are Afr. Americans, have lower incomes, and are less educated (see chart).
- Same day or Election day registration, has been restricted by 13 state laws and 5 states reduced early voting. Voter registration drives have been restricted in FL.
- 3/7 states do not allow student photo IDs as acceptable forms of ID (the argument being that this prevents illegal aliens who are students from voting)
- The Voter ID laws implemented this past year were all passed along Republican partisan lines (with the exception of RI).
- Voter Fraud is not a problem:
- A Five-year investigation by the Justice Department under President George W. Bush found just 86 instances of improper voting from 2002 to 2005.
- A Brennan Center report released in 2007, “The Truth About Fraud,” found that allegations of voting fraud are often wholly inaccurate or heavily exaggerated; the type of voter fraud targeted by current voter ID legislation—is “more rare than death by lightning.”
- In Virginia, proponents could not cite one single example of voter fraud in the state.
- The Department of Justice investigated over 300 million votes cast between 2002 and 2007 and found no cases of voter impersonation fraud.
So, these civil rights groups and “left-leaning” organizations feel that the voting ID laws will keep an estimated 5 million people from voting, discriminate against minorities and young people, and that the allegations of voting fraud are inaccurate or that there is evidence of a necessity for a law.
Seems like the two sides (especially over voter fraud) are at an impasse right? Well, there are some overlapping ideas that both sides can agree on, but since this is an election year, the charge that these laws are politically driven will make any consensus very difficult. Here are some ideas to bring the two sides together: (Yay togetherness!)
Both sides seem to believe that the *current voting process has systemic problems. This is amplified from the current Pew Center report that showed that 1.8 million dead people were registered to vote and showed how states haven’t been able to keep track of voter’s movements. Both sides agree that *the voting system needs an overhaul *the states and the fed have a shared responsibility to expedite a fair voting process. *Both sides feel that more people should have free access to a Govt. ID.
Based on some of these shared interests, the best option for the near future is to draft a new voter registration process so that everyone has a Govt. issued photo ID. The current laws seem discriminatory because people actually lack the ID to comply with the law, which restricts people (disproportionately minorities) from voting. To make sure the laws actually comply with the 15th Amendment and the Voting Rights Act, everyone will need access to an ID, so laws aren’t discriminatory.
My personal opinion on absentee voting or early voting (coming from someone who has voted absentee 3 times) is that the state laws limiting this access are making it more difficult for young people to get involved in civic activity. States should want more young people to get involved. So for now, this question will need a different solution to be bi-partisan.
Hopefully, this look into the issue was helpful, informative, and bi-partisan. If people really look into the main goals of both sides, a solution may be closer than we realize.
Well, until next time, enjoy President’s Day Weekend!
Your Faithful Historian,
Eric G. Prileson
Hans A. von Spakovsky, “Voter Photo Identification: Protecting the Security of Elections,” Heritage Foundation Legal Memorandum No. 70, July 13, 2011.