Voter ID Laws and Blocking Access to the Ballot: New Tools, Old Tricks
Karen Tanenbaum
In 2011, voting rights advocates found themselves fighting a wide range of attempts to create barriers to broad participation to voting—making it more difficult for people of color, people with disabilities, students, low-income workers, and seniors to vote.
Advocates believe that the spate of voter suppression legislation, including shortened early voting periods, limits on poll worker assistance, proof of citizenship requirements, restrictions on same day and third-party registration, and felon disenfranchisement, are all part of a coordinated campaign of voter suppression that is the most significant threat to voting rights in decades.
“Their goal is simple—to suppress the vote of African Americans, Latinos, people with disabilities, low-income people, American Indians, Asian Americans, young people, seniors, and other constituencies that support progressive policies,” said Wade Henderson, president and CEO of The Leadership Conference on Civil and Human Rights. “The poll taxes and literacy tests of an earlier era are today embodied in state laws that require photo IDs to vote and that limit early voting, provisional voting and voter registration.”
New restrictive state voting laws will adversely affect up to five million voters, according to an October 2011 study by the Brennan Center for Justice at New York University School of Law. The study looked at 19 laws and two executive actions that were enacted during the last year in 14 states, all of which make it more difficult for citizens to vote.The rhetoric surrounding the new state laws is both telling and concerning. Nevada Governor Brian Sandoval inaccurately claimed that “the right to vote is a privilege.” New Hampshire House Speaker William O’Brien noted in a speech posted on the internet that young people shouldn’t have the right to cast a ballot because they “vote their feelings” and are “foolish.”
The typical justification for these restrictive laws is that the integrity of elections has to be protected in order for Americans to continue to have faith in our electoral process. But few of the new state laws streamline the process, make it easier for voters, or reduce the likelihood of administrative error.
As an example, voter ID proponents claim that these laws combat voter fraud, but studies have consistently shown that in-person voter impersonation—the only type of fraud an ID would remedy—is virtually nonexistent. The new laws actually create barriers rather than solve an existing problem.
According to the Brennan Center, a full 11 percent of voters in the United States don’t have a current government-issued photo ID, and the figures are disproportionately higher for people of color, people with disabilities, students, low-income workers, and seniors.
For those without ID, the hurdles to obtaining one are substantial. Though the IDs themselves are supposed to be free, a trip to the state motor vehicle office can require an eligible voter to take uncompensated time off from work and to pay for child care and transportation. People may also lack birth certificates and other supporting documents necessary to obtain a government-issued photo ID.
For example, decades ago, many Americans from the rural South used midwives rather than hospitals when giving birth and so formal birth certificates may be nonexistent, incorrect, or misplaced. When those documents do exist, they may also be prohibitively expensive to obtain. A birth certificate can cost up to $50 and naturalization papers may be up to $200.
Despite the significant indirect costs to voters, the U.S. Supreme Court upheld states’ ability to pass voter ID laws in its 2008 decision in Crawford v. Marion County Election Board. Justice John Paul Stevens, in his majority opinion, said that the burden to most voters was minimal since “the inconvenience of making a trip to the BMV (Bureau of Motor Vehicles), gathering the required documents…does not qualify as a substantial burden on the right to vote.”
The Court’s decision created the space for other states to pass voter ID and other restrictive laws, and has made it more difficult for voting rights advocates to challenge them.
Nevertheless, advocates have continued to fight back. Groups like the Advancement Project, the Lawyers’ Committee for Civil Rights Under Law, the ACLU, the League of Women Voters, and litigating organizations like NAACP Legal Defense and Educational Fund and the Mexican American Legal Defense and Educational Fund all worked with voting rights advocates in states around the country to keep voter ID bills from being passed in states like Pennsylvania, Missouri, and North Carolina—and, once they did pass in other states, employed a number of tactics to challenge the laws.
In Ohio and Maine, initiatives were placed on the state ballots to repeal new restrictive laws passed by the states’ legislatures. In Maine, voters passed a ballot initiative on November 8 to overturn the state’s new law that eliminated same-day registration. In Ohio, voters approved a referendum on Ohio’s H.B. 194, a law the state legislature passed in June that would severely limit early voting, prohibit poll workers from assisting voters completing forms, and make it more difficult for local boards of elections to promote early voting.
Voting rights advocates have also filed a number of lawsuits challenging restrictive voter laws in Florida, Wisconsin, Missouri, Arizona, and other states. In addition, advocates have pushed Congress to investigate these laws, resulting in several congressional hearings throughout the year; and have urged the Department of Justice to use its authority under the Voting Rights Act (VRA) and other voting rights laws to intervene where possible.
A December 13 speech at the LyndonBaines Johnson Library & Museum in Austin, Texas, Attorney General Eric Holder spoke eloquently of the department’s commitment to ensuring that every single American can cast a vote:
“As concerns about the protection of this right and the integrity of our election systems become an increasingly prominent part of our national dialogue – we must consider some important questions. It is time to ask: what kind of nation – and what kind of people – do we want to be? Are we willing to allow this era – our era – to be remembered as the age when our nation’s proud tradition of expanding the franchise ended? Are we willing to allow this time – our time – to be recorded in history as the age when the long-held belief that, in this country, every citizen has the chance – and the right – to help shape their government, became a relic of our past, instead of a guidepost for our future?
For me – and for our nation’s Department of Justice – the answers are clear. We need election systems that are free from fraud, discrimination, and partisan influence – and that are more, not less, accessible to the citizens of this country.”
Ten days after the speech, the Justice Department announced that it would block a new South Carolina voter ID law using its authority under Section 5 of the VRA, which requires states and localities with a history of racial discrimination to obtain Justice Department or federal court approval for voting law changes. At the end of 2011, the department was also reviewing voting laws in Texas and Florida.
Voting rights experts expect that some states will introduce (or reintroduce) voter ID and other voter suppression legislation next year.
While maintaining the current focus on battling restrictive voting laws, advocates will continue to push to expand voting rights so more Americans can participate in the democratic process. These initiatives include laws like the Democracy Restoration Act, which would expand access to the ballot box by allowing formerly incarcerated people who have completed their sentences to vote, and legislation to streamline and modernize the registration and election process without restricting access.
Karen Tanenbaum was a summer 2011 legal intern for The Leadership Conference on Civil and Human Rights and The Leadership Conference Education Fund. She currently attends the University of Georgia School of Law.
