Two Steps Backward: Suppressing the Vote in 2012

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The United States has a history of promoting free elections – and of restricting them. The Constitution of 1786 left elections up to the states, and generally, only white, male property owners could vote. Since then, constitutional amendments and enabling legislation have hugely extended citizen suffrage. But it has not been a steady climb.

Until 2000, the trend favored expanding the franchise: to African-Americans, women, 18 to 21 year-olds, and those who couldn’t pay poll taxes. Recently however, and especially since the 2010 elections, the tide has turned. New York University’s Brennan Center for Justice calls what’s happening “the biggest rollback in voting rights since the Jim Crow era.” At the state level – where most voting rules and regulations are defined – many recent laws make registering and voting more difficult. Much of this has been facilitated by the American Legislative Exchange Council (ALEC), a corporate-funded think tank that supplies model legislation to conservative state legislators. ALEC also promoted, among other things, the “stand your ground” gun laws that have cost many lives.

In the last few years, more than 30 states have adopted restrictive voting laws, whose burdens “fall most heavily on young, minority, and low-income voters, as well as voters with disabilities” says the Brennan Center. “These new laws could make it significantly harder for more than five million eligible voters to cast ballots in 2012.” [1]

What sorts of measures are we talking about? They include:

• Requiring voters to have specific types of photo ID documents;
• Instituting onerous regulations, with high penalties for minor errors, for third parties (such as the League of Women Voters) conducting voter registration drives;
• Eliminating same-day voter registration;
• Instituting broad purges of registration lists, requiring many legitimate voters to jump through hoops to re-establish their right to vote;
• Making it more difficult to establish “place of residence” to be able to vote (affects especially students and those who move frequently);
• Reducing the number of polling places and/or their open hours;
• Curtailing absentee and early voting.

These measures disproportionately handicap minorities, the poor and the elderly.

To Prevent Fraud?

The sponsors say the new laws are needed to “prevent fraud.” And it’s certainly true that electoral errors and fraud (they are not the same thing) have been serious problems throughout American history.

Electoral errors remain all too common. Grilled by a Congressional committee about problems with network coverage of the 2000 election, NBC News president Andrew Lack noted: “Millions of votes are thrown out in election after election in this country. Now there’s a story, there’s a screw-up.”[2] The Caltech/MIT Voting Technology Project, a study of US voting techniques and problems begun immediately after that election, estimated that 4 to 6 million votes of legitimate citizens were lost in the 2000 presidential election.[3] Astonishingly, these numbers represent about 5 percent of the officially tallied 105 million votes. The largest sources of these errors included problems with registration, long lines and other accessibility issues at polling places, as well as difficulties with voting machines or other aspects of usability, such as Palm Beach County’s confusing “butterfly ballot.” Irregularities in counting the votes are also of concern; since 2000, the American Statistical Association has focused on improving electoral auditing.[4] Remember: “It’s not who votes that counts, it’s who counts the votes!”

So, electoral errors are well-documented, frequent and continuing. And it is important to protect against large potential sources of electoral fraud – that is, malicious errors. But the kinds of problems that the new laws target are vanishingly rare. Meaningful manipulation of the system requires the involvement of partisans who are, or collude with, election officials – those in the best position to place a heavy thumb on the scales. The current so-called “reforms” don’t address such issues. Instead, they are mainly aimed at fraud by individual voters; that is, at voter fraud. The distinction is critical, for that is simply not where the trouble lies.

A prominent new restriction requires voters to present specific kinds of identification. For example, Tennessee’s new law requires one of several forms of government-issued photo ID; the list includes “State-issued handgun carry permit with your photo,” but explicitly excludes any form of college student IDs. These requirements (and the other new restrictions) do not address stuffed or lost ballot boxes, rigged voting machines, gerrymandered district boundaries, vote buying or other time-honored and far more effective ways to steal elections, nor do they help with any of the “mechanical” problems identified by the Caltech/MIT project. The only problem they could conceivably address is that of an individual impersonating a legitimate voter in order to cast a fraudulent ballot. That is already a crime carrying heavy penalties, and for miniscule partisan gain. How common could it be?

Voter Fraud Is Rare

There is little evidence of the kind of voter fraud that ID laws could help prevent – that is, one person, not entitled to vote, impersonating a legitimate voter. This has been amply demonstrated.[5] One particularly meticulous study concludes: “The data … are consistent with a logic that works against the fear that individual voters are corrupting elections. The best facts we can gather to assess the magnitude of the alleged problem of voter fraud show that, although millions of people cast ballots every year, almost no one knowingly and willfully casts an illegal vote in the United States today.[6]

A recent study by News21, reported in the Washington Post on August 11, 2012, confirmed that conclusion. Reporters sought in every state to find all the cases of alleged election fraud occurring from 2000 to the present time. Among the 2068 cases, just ten were voter impersonation frauds that ID requirements might have prevented.

But the ID restrictions will significantly, and differentially, suppress voting by certain groups. The issue is highly politicized, since those most likely to be disenfranchised tend to vote Democratic, and nearly all the push for the new restrictive measures is from Republicans.

As Bad as Citizens United?

The new wave of ID requirements began in Indiana in 2005, with a law that required all voters casting a ballot in person to present a United States or Indiana photo ID. A constitutional challenge to the law reached the US Supreme Court, with the state claiming that the photo ID requirement would reduce instances of voter fraud. However, even as the Court upheld the law on a 6-3 vote in January of 2008, it acknowledged that there was no record of any fraud in Indiana’s history that such a requirement would have prevented! All of the few cases of documented fraud presented had occurred with absentee ballots, and would not have been covered by the statute. In dissent, Justice David Souter argued that Indiana needed to show the actual existence of fraud, as opposed to merely claiming that fraud was possible, before imposing “an unreasonable and irrelevant burden on voters who are poor and old.”[7] That is: “If it ain’t broke don’t fix it!” – especially when the unneeded fix is expensive and burdensome. Souter’s dissent goes to the heart of the issues at stake today.

Justice John Paul Stevens, writing for the majority, stated, “Indiana’s interest in protecting public confidence in elections, while closely related to its interest in preventing voter fraud, has independent significance, because such confidence encourages citizen participation in the democratic practice.”[8] This is bizarre; how will adding an obstacle to voting increase the turnout? No facts supported the court majority’s speculations, and there is now evidence that they are false. An opinion study reported in the Harvard Law Review in 2008 investigated the connections between belief in several types of possible fraud and voting behavior. It is true that belief in voter fraud is widespread: 35 percent of Republicans and 15 percent of Democrats agreed (incorrectly) that “voting more than once or voting if not a US citizen” was “very common.” However, a person’s belief in the prevalence of voter fraud was unrelated to either the presence of strict ID requirements, or to his or her intention to vote. The study concludes: “The use of photo identification requirements bears little correlation to the public’s belief about the incidence of fraud. The possible relation of such beliefs to participation appears even more tenuous…. [We] conclude that … public perceptions do not provide a firm justification for voter identification laws.”[9]

Unfortunately, the Supreme Court’s decision in this case, Crawford v. Marion County Election Board, opened the gates for a flood of equally unnecessary ID laws in other states, creating many of the problems facing voters in 2012.

The Cost of Requiring Specific ID

In the Crawford decision, Justice Stevens wrote that “the inconvenience of making a trip to the BMV, gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote.” Not for him, nor for most middle-class citizens who have drivers’ licenses – if they don’t consider that their listed address may not be current, or, especially for some recently married women, that it might not have their current name. But many citizens don’t have acceptable ID. In 2008 in Indiana, for example, ten elderly nuns were turned away from where they had voted for many years because they lacked current, government-issued photo IDs. These women did not drive; the eldest, 98, had given it up many years earlier. She might be able to get an ID from a government office a few miles away – but she could not get there easily.

The costs of implementing voter ID laws may be substantial. Such costs are in part financial, when government at various levels accepts its responsibility to provide acceptable IDs at no cost to the voter. (Charging a fee for a required voting document would be a kind of “poll tax” and is therefore prohibited.) But acquiring even a nominally free ID may be hard for citizens without a driver’s license because of the need to assemble (and pay for) acceptable proof and get to a place that will issue the ID during the limited hours made available.[10]

The greater cost of the ID requirements and other restrictive measures is their potential damage to the democratic process, since such measures affect some groups far more than others. A study by the National Association for the Advancement of Colored People (NAACP) found that the restrictions will “exact a disproportionate price on Afro-Americans and other voters of color.”[11] And, while the number of legally qualified people who will be prevented from voting by the new ID laws can only be estimated, it is orders of magnitude larger than the rare instances of voter fraud.

An Example: Florida

Now, as in the controversial presidential election of 2000, the state of Florida is in the eye of the storm. Florida has had an ID law for many years, although not a highly restrictive one. Other tactics currently predominate in the Sunshine State. A brief summary:

1) Restricting voter registration drives. In the 2008 presidential election, the nation saw an impressive increase over 2004 in voting by minorities: votes cast by African-Americans were up 15 percent, by Asian-Americans 21 percent, and by Hispanic or Latino citizens about 28 percent. These increases were facilitated in many areas, including Florida, by voter registration drives carried out by organizations such as the League of Women Voters (LWV), Rock the Vote, NAACP and others. These drives are important. “It’s a documented fact that minority and low-income citizens, in particular, rely on community voter registration drives to register to vote,” says Michael Slater, executive director of Project Vote.[12] In 2008, almost 20 percent of African-American voters had registered in such drives, compared to only 6 percent of whites.

Florida has a history dating back to 2005 of obstructing voter registration drives, but the LWV and others have successfully challenged the restrictions in court. Between 2009 and 2011, the issues seemed to have been settled and an agreement was reached for the future. In May 2011, however, the legislature passed, and newly elected Gov. Rick Scott signed, a bill (HB 1355) creating serious new obstacles to registering and voting in Florida. The stated rationale was preventing fraud, even though the Florida Department of State itself noted “just 31 cases of alleged voter fraud” between 2008 and 2011, only two of which resulted in arrests.

The new law included tight regulations hindering voter registration drives by third parties, regulations so threatening that even the LWV stopped its registration work. The impact has been substantial: a recent study showed registrations down by over 80,000 compared to the corresponding period of the 2008 election cycle.[13]

In late May 2012, a federal district court in Florida blocked implementation of the most restrictive of the new rules obstructing registration drives. The LWV and other organizations quickly announced they would resume their efforts to register as many voters as possible, although they still face more obstacles than before. “Registering citizens to vote is part of our core mission, and we’re excited to get back to work,” said St. Petersburg LWV President Darden Rice.[14] But time is short, and they are unlikely to be able to make up all the lost ground.

2) Purging the registration list. The state of Florida does not have a good history with voter lists. In 2000, a purge from voter roles of alleged former felons (who are ineligible to vote under Florida law) was based on highly flawed data and erased the registrations of some 12,000 legitimate voters.[15] African-Americans, some 11 percent of the state’s electorate, made up over 40 percent of those purged, and many were prevented from casting ballots in an election where George W. Bush’s official margin of victory was 537. A similar wrongful purge was narrowly averted in 2004.

In 2002, responding to the electoral problems from 2000, Congress passed the Help America Vote Act (HAVA). This law requires, among other things, that each state maintain a computerized, statewide list of registered voters, updated periodically to keep it accurate. But doing that job well is not a simple task [16] and can open the door to abuses similar to Florida’s previous purge debacles. Similar controversy has arisen this year.

Late in 2011, Governor Scott ordered the secretary of state to identify and remove noncitizens from the voter registration list. Lacking accurate citizenship data, the secretary used motor vehicle department records to come up with over 180,000 names of “potential non-citizen registered voters.” That list was not made public, but it was later revealed that Hispanics were greatly overrepresented. The state did release a subset 2,625 names (with no information about how the subset had been selected) to county election supervisors, asking them to investigate and, if justified, remove the names from their voter rolls. Among others, Rep. Ted Deutch (D-Florida) objected, pointing out that although Florida has “no history of mass voter fraud,” it does have a history of “mass voter disenfranchisement” dating from the elections of November 2000.

Many county election supervisors did not act on the call to investigate the list of names, but others did, receiving strong complaints from citizens, often people recently naturalized and proud of it. There was also Bill Internicola, born in Brooklyn in 1921, who had earned a Bronze Star in World War II. Internicola had to show his Army discharge papers to remain registered.

At the end of May, the US Justice Department (DOJ) called for a halt to the purge. Florida’s procedures had not been “pre-cleared” as required under the Voting Rights Act, and the late timing of the purge appeared to conflict with the 1993 “Motor Voter” Act. Governor Scott ordered the purge to continue, but other state officials, and almost all county election supervisors, stopped. The original list of “potential non-citizens” was eventually made public, with the state now calling it “obsolete” and insisting that it will not be used to purge voters this fall. In late July, one commentator judged that “the purge is in limbo” and thinks, “In the end, the voter purge battle in Florida may have been fought to a draw.”[17]

By September 12, 2012, Florida’s Department of State reported that it had identified 207 non-citizens on the voter rolls. The department changed its earlier request, now asking supervisors to inform all others whose eligibility had been questioned that they were indeed legitimately registered. Understandably, much confusion remains.

The state has also announced that it will remove some 53,000 dead persons from the voter rolls. This should not be controversial – provided they are really dead. Further, unless someone tries to vote on their behalf, having a dead person’s name on the list need not be a problem and is not fraud.

3) Cutting back on early voting. Getting to the polls on Election Day is hard for many would-be voters, especially those who can’t afford to miss part or all of a day’s wages. Early voting can be the answer. Moreover, in 2008, the last Sunday before Election Day, which falls on a Tuesday, made a big contribution to that year’s high voter turnout. Souls to the Polls campaigns, encouraging churchgoers to cast their votes as a group, were especially effective with minority voters; African-Americans made up about one-third, and Hispanics almost a quarter, of Florida’s last-Sunday voters in that year.

HB 1355, Florida’s new voting law, cuts early-voting days from 14 to 8, explicitly eliminating voting on that last Sunday.[18] Since this part of the law disproportionately affects low-income and minority voting, its implementation has been blocked by a federal court in Washington, at least for those counties covered by Section 5 of the Voting Rights Act.

4) Disenfranchising those convicted of a felony. The United States is one of the world’s most restrictive democracies when it comes to denying the vote to people convicted of crimes even after they have completed their sentences. Nearly 6 million Americans, about 2.5 percent of the total voting-age population, cannot vote due to what is often referred to as felon disenfranchisement. That number has risen rapidly; as recently as 1977, it was less than 1.2 million. Like US prisoners as a group, those affected are disproportionately African-American; their disenfranchisement rate is four times that of whites.[19]

States differ widely on this issue, and Florida’s policy is particularly harsh. As of January 2011, both Florida’s disenfranchisement rate and the total number of people thus banned from voting were the highest in the nation, about 10.4 percent and 1.54 million, respectively. Of these, some 520,000 were African-Americans, amounting to 23.3 percent of that group’s voting-age population.

These laws and numbers have been changing on a state-by-state basis, often in the direction of greater leniency. Not in Florida, one of six states that disenfranchises ex-felons for life. Florida law does provide for applying to have one’s voting rights restored, and in 2007, then-governor Charlie Crist streamlined and liberalized the restoration procedure, allowing over 100,000 Floridians to regain their franchise. That policy was quickly reversed in March 2011 by Governor Scott. There is now a five-to-seven-year waiting period before a former felon can even apply for restoration. Further, the process is complicated, and there is no certainty of success. Many ex-felons have received contradictory information about their eligibility; thus, some who are eligible will not vote for fear that they may not be. This hurdle, like the other measures discussed above, will significantly reduce voting by minority and low-income populations.

Why Make it Harder to Vote?

Florida is just one example; since the beginning of 2011, at least 41 states have introduced measures restricting access to the ballot, with varying success. Since the number of legitimate voters who will be handicapped by the new voter ID requirements certainly far exceeds the few cases of voter fraud that might be prevented, stopping fraud can’t be the real reason for these laws. Some of their proponents have publicly admitted having other motives.

New Hampshire House Speaker William O’Brien told a tea party group that he backed making it harder for students to vote since they “just vote their feelings.”

“Voting as liberal. That’s what kids do,” said O’Brien.

A more striking case recently surfaced in Pennsylvania, where House Majority Leader Mike Turzai, listing his party’s accomplishments for the Republican State Committee, called out: “Voter ID, which is going to allow Governor [Mitt] Romney to win the state of Pennsylvania, done!”[20] A Democratic legislator commented on the same partisan advantage: “Voter impersonation, which is the only form of voter fraud that voter ID would address, never occurs in Pennsylvania. This was always about suppressing the votes of people who vote the wrong way.” The law has been partially blocked for the 2012 election; a recent court ruling asserts, confusingly, that poll workers may ask voters for a photo ID, but that the ID is not required in order to actually vote.

In Florida too, the sponsor of the restrictive HB 1355 openly admitted that his bill was meant to make voting more difficult. “I don’t have a problem with making it harder,” said State Republican Sen. Mike Bennett. “[Voting] should not be easy.”[21] But – these laws make it much harder for some than for others.

In Ohio, where early voting on weekends has been eliminated, GOP partisan Doug Preisse made a surprisingly frank admission to the press: “I guess I really actually feel we shouldn’t contort the voting process to accommodate the urban – read African-American – voter-turnout machine.” Preisse, a county party chair and adviser to Ohio Gov. John Kasich, said publicly what many believe – suppressing turnout among likely Obama supporters is a key strategy for the GOP to win the 2012 election.[22]

How many fraudulent votes avoided are needed to justify disenfranchising even one or two – or several hundred thousand – legitimate voters?

Concluding Thoughts

Half a century ago, broad participation in politics and elections seemed almost synonymous with democracy itself. For example, on election eve in 1956, President Eisenhower urged participation, saying: “If we don’t vote, then we are forfeiting one of the greatest privileges we have, of participating in the decisions of this country. I am not speaking now of how you vote. I am talking about the act itself.”

“That is the thing that we must do,” said Roosevelt.

And Congress largely agreed; the Senate vote for the 1965 Voting Rights Act was 77 to 19, with 30 out of 32 Republicans in favor. (Almost all the negative votes were from Southern Democrats.) This ideal is still alive, as in this recent editorial: “Any attempt to narrow the voting population is suspect; increasing voter participation should be a national goal. To reverse this trend, voters need to elect representatives who value voting rights.”[23]

For decades, however, Americans have tolerated electoral errors that regularly disenfranchise millions of voters. Reforms are badly needed, but the recent restrictive laws and regulations do not help.

Whether we make voting harder or easier and whether or not we invest in improving our elections reflects our values as a nation. Serious reforms must address the nation’s actual electoral problems, not the mythical ones that photo-ID laws purport to solve.

Notes:

1.
See, for example, Wendy Weiser and Lawrence Norden, “Voting Law Changes in 2012,” Brennan Center for Justice (NYU School of Law), 2011.

2.
“Hearing Puts Network Chiefs on Defensive,” Los Angeles Times, February 15, 2001.

3.
Caltech/MIT Voting Technology Project, Voting: What Is, What Could Be, July 2001. See also MIT News, July 16, 2001.

4.
Election Auditing Resources, on the ASAs’ web site: https://www.amstat.org/policy/electionauditingresources.cfm

5.
For example see Justin Levitt, “The Truth About Voter Fraud,” Brennan Center for Justice, 2007; also Lorainne C. Minnite, The Myth of Voter Fraud, Cornell University Press, 2010.

6.
The Myth of Voter Fraud, pp. 5 -6.

7.
Supreme Court of the United States, Crawford et al v. Marion County Election Board et al, opinions of Justice Stevens (for the majority, to uphold the Indiana law) and Justice Souter (dissenting).

8.
Ibid.

9.
Stephen Ansolabehare and Nathaniel Persily, “Vote Fraud in the Eye of the Beholder: The role of public opinion in the challenge to voter identification requirements,” Harvard Law Review 2008, pp. 1737 – 1773.

10.
See among others Keesha Hawkins and Sundeep Iyer, “The Challenge of Obtaining Voter Identification,” Brennan Center for Justice, July 17, 2012. Their paper contains this extreme example:

The Mississippi Catch-22
Although Mississippi’s restrictive law is not yet in force, citizens there without ID face particularly perverse rules. To secure government-issued photo ID, many voters will need a birth certificate. Yet the state requires a government-issued photo ID to obtain a certified copy of a birth certificate. These rules jointly represent another major hurdle to voting placed in the path of those with the least means to surmount them.

11.
“Defending Democracy: Confronting Modern Barriers to Voting Rights in America,” A Report by the NAACP Legal Defense and Education Fund and the NAACP, 2011.

12.
Project Vote Newsletter, March 29, 2012.

13.
New York Times study, March 27, 2012.

14.
The Miami Herald, August 9, 2012.

15.
“United States v. State of Florida: Court Cases,” Brennan Center for Justice, June 26, 2012.

16.
See for example Myrna Pérez, “Voter Purges,” Brennan Center for Justice, September 30, 2008.

17.
Molly Ball, “Will Florida’s Voter Purge Cost Obama the Election?” The Atlantic, July 24, 2012.

18.
See testimony of Michael Herron and Daniel Smith before the U.S. Senate Judiciary Committee, Subcommittee on the Constitution, Civil Rights and Human Rights, January 27, 2012.

19.
Figures in this and the following paragraph are from Uggen, Shannon and Manza, “State-Level Estimates of Felon Disenfranchisement in the United States, 2010,” The Sentencing Project, July 2012.

20.
Pittsburgh Post-Gazette, 6/28/2012.

21.
Quoted in Brentin Mock, “Florida to People of Color: Don’t Vote Here,” The Nation, July 16 -23, 2012.

22.
Columbus Dispatch, August 19, 2012.

23.
San Jose Mercury News, June 20, 2012.

This article is based on work presented by one of us (Ash) in a talk to the American Statistical Association in July 2012 and in a joint article entitled “Elections 2012: Suppressing Fraud or Suppressing the Vote?” that has been accepted for publication in Statistics, Politics and Policy.