“Jim Crow, Barack Obama, and Crawford: Voter ID Laws’ History and Future as a Voter
Suppression Tool”
José A. Morales, Jr.
Written under the supervision of Dr. Gregg Ivers, School of Public Affairs
University Honors
Spring 2013
TABLE OF CONTENTS
Executive Summary
3
A Foundation of Suppression
4
The Voting Rights Act
8
Bush, Gore, and Crawford
14
Fraudulent Claims of Voter Fraud
20
Racism, Classism, or Just Plain Politics?
25
Analyzing the Court: Shelby v. Holder
30
The Political Rhetoric of Jim Crow II
33
We ID: The Future
38
Conclusion
43
2
EXCEUTIVE SUMMARY
This capstone answers some of the many contemporary political questions surrounding new
state laws mandating voters obtain and use photo identification cards when they vote. Almost
every state has proposed such a law in their state legislature and over half the states have
approved them. This capstone acknowledges the foundation of the voter ID in the South
political history of suppression and racism—under the Democratic Party. The Republican
Party is, with one exception, the driving force behind the push to have these laws codified,
conflating allegations of voter fraud as convictions. These laws disproportionately affect
Democratic base voters (the young, the racial minorities, the indigent and immigrants) along
with elderly and poor farmers. Democrats have led a political charge against these laws with
heated rhetoric of “poll taxes” and Jim Crow without relying on the fact that undercuts the
primary charge: voter fraud is an unsound justification for stringent voter ID laws because it
is one of the rarest crimes committed with in person voting being the least common
subsection of that crime.
3
A Foundation of Suppression
Voter suppression and disenfranchisement has been a motif of American political
history. To the extent that it has been used for partisan gains, both of the major national
parties are to blame. Disenfranchisement of women and African Americans was embedded in
the fabric of the country when the Constitution of 1787 was ratified. So squarely put the
blame on any of the major parties up until the Reconstruction Era would be misguided.1
After the ratification of the Fifteenth Amendment, which enfranchised former male
slaves across the country, the former Confederate states rebelled politically and vociferously.
The Democratic Party brought to prominence by President Andrew Jackson was home to
many of the secessionists, and many of these party members fought in the Confederate Army
or held a seat in the rebellion government. The Fifteenth Amendment barred these men from
serving in the government. The vacuous hole in public service was filled by Republicans that
were not necessarily from the South, often called “carpetbaggers.” Southern politicians
decried the Republicans as not only unable to govern the South but as an illegitimate regime
that had to be overthrown. If this meant violence, as it often did, then so be it.2
The Republican Party, with African Americans’ overwhelming support, briefly ruled
the Southern state governments, and that perturbed Southern Democrats. To win back local,
state, and House congressional districts, Democrats allowed the Klu Klux Klan and other
racist, partisan organizations to terrorize and kill Republican sympathizers, especially African
Americans.3 This model helped destabilize Republican governors and legislatures at the
beginning of Reconstruction, but a more permanent barrier needed to be formed.
1
The Jeffersonian Democratic-Republican Party, Jacksonian Democratic Party, the 1820s-30s National
Republican Party, The American/ Know-Nothing Party, The Whig Party, the 1850s Republican Party
2
Perman, Michael. The Southern Political Tradition. Walter Lynwood Fleming Lectures in Southern History.
Baton Rouge: Louisiana State University Press, 2012. Pg. 15.
3
Perman 2012, 16.
4
To ensure their permanent placement in home rule of the state governments,
politicians convened to scrap their state constitutions as they were and create permanent
barriers to African Americans. Because of the Fifteenth Amendment, these suppression
measures had to seem nonracial prima facie. It is here that we see the beginning of suffrage
qualifications “such as literacy, residence, and the payment of taxes” while allowing some
poor whites to pass by these rules with “grandfather” and “understanding” clauses.
Democrats ruled the South as a one-party system from the end of the nineteenth century up to
the Civil Rights Movement.4
The Democratic Party during and immediately following Reconstruction performed
very poorly as a national party, losing almost every presidential election from 1868 to 1912
(President Grover Cleveland’s nonconsecutive victories being the only exception).5 From the
39st Congress (1865-1867), the beginning of Reconstruction under President Andrew
Johnson, to the 62nd Congress (1911-1913), Democrats only controlled the Senate twice and
the House of Representatives eight times. This is not necessarily a loss, considering the
Democratic Party was primarily concerned with states’ rights and avoiding Northern
influence. Paradoxically, President Woodrow Wilson—the Democrat who ended the
Republicans’ almost constant control of the White House since Reconstruction—pushed for
the ratification of the Nineteenth Amendment, which expanded suffrage to women.
Even after this expansion of voting rights, the South sought new ways to cope with a
country that was looking to enfranchise everyone over the age of twenty-one. Liberal
Republicans and members of the Progressive Party were introducing primaries into their
states. This presented a problem for Southern states where municipalities were largely black
and could defeat establishment candidates in a primary. The South adopted the liberal reform,
4
5
Perman 2012, 18-20.
Perman 2012, 23.
5
but it was operated exclusively by the Democratic Party. Because the party itself is a private
entity, it believed that it could run a “white primary,” excluding not only African Americans
but any independent or Republican challengers from rocking the boat at the beginning of the
election cycle. This represented a 360 degree cycle of voter suppression: African Americans
would be excluded from the primary, intimidated if they tried to register to vote, and further
antagonized if they approached the ballot box. 6
The one party rule of the Southern United States came to an end as President Franklin
D. Roosevelt (FDR) and the liberal New Deal Democrats forever changed the national
Democratic Party. The whites-only primary was ruled unconstitutional by the Supreme Court
in Smith v. Allwright (1944). As the Great Depression and Second World War choked the
globe, the US government implemented swaths of FDR’s new social welfare programs,
aimed at helping the poorest in the country survive the financial devastation. As more and
more programs were implemented over pro-business and conservative Republican opposition,
Africans Americans began to do the unthinkable: vote for Democrats.7 Even with the
changing political demographics, the political establishment in the South continued to permit
voter intimidation.
Following the end of the Second World War, the segregated South was brought into
focus as a problem that needed fixing. President Harry Truman incorporated civil rights into
his reelection campaign and proposed stronger re-enfranchisement methods to Congress,
although only a watered down and ineffective civil rights bill passed in 1957, shortly before
the integration riots that stemmed from Little Rock, Arkansas.8 The Democrats continued
6
Perman 2012, 19-20
Wang, Tova Andrea. The Politics of Voter Suppression : Defending and Expanding Americans' Right to Vote.
Ithaca: Cornell University Press, 2012. Pg. 30.
8
Perman 2012, 58-59.
7
6
their stronghold as an organization that controlled the states, but their place as a national
party began to fracture terminally in the 1950s.
As civil rights and suffrage protections, specifically the repeal of the poll tax, were
incorporated into the Democratic Party’s platform, the political landscape went through
seismic changes. Losing support the poll tax was a major political blow to the Old South and
served as premonition for the turbulent decades ahead. For decades, liberal Northerners urged
for the repeal of the unequitable poll tax, but the Southern Democrats in the Senate made
extensive use of the filibuster and their position in the Senate leadership, specifically a Texas
senator who was the Majority Leader of the Senate, Lyndon Baines Johnson.9
The Southern Democrats split off from the main organization in 1948 and nominated
Strom Thurmond unsuccesfully against Truman under the banner of the States’ Rights
Democratic Party, or Dixiecrats. When John F. Kennedy was elected president in 1960, none
of the electors from Mississippi and six out of the eleven from Alabama voted for him in the
Electoral College. In the midst of his tacit but growing support for federal civil rights
legislation, he was murdered on November 23, 1963. His ideas formed the foundation of the
Civil Rights Act of 1964 and the Voting Rights Act of 1965.10 Following Kennedy’s
assassination, the powerful Senate majority leader that was instrumental to watering down the
1957 and 1960 civil rights bill occupied the Oval Office, and was now in charge of leading
the next phase of the Civil Rights Movement. What was required of the nation now, which
had witnessed bloodshed not only over voter suppression but white supremacy all over the
South, was a fundamental overhaul of existing laws and the very meaning of the Constitution.
9
Perman 2012, 52-59.
Wang 2012, 32.
10
7
The Voting Rights Act
Johnson’s ascendency to the presidency preceded a productive legislative period,
especially for civil rights. Utilizing the momentum from the 1964 Civil Rights Act and LBJ’s
decisive victory over conservative icon Senator Barry Goldwater, civil rights leaders in the
South pushed harder than ever to finally secure the right to vote. The Voting Rights Act of
1965 had its foundations in the Kennedy Administration, but its intensity and broad scope
was aided by the context of the times it sought to rectify.
On March 7, 1965, civil rights marchers planned a trek from Selma to Montgomery,
Alabama as a political demonstration against Governor George Wallace. Wallace, a
Democrat, was a staunch segregationist. He had state troopers meet the 600 marchers on
Edmund Pettus Bridge, before the protesters could leave Selma. Policemen on horses used
tear gas and batons on the protestors, turning them back. The event cut into broadcasts across
the country and media awaited the clash on the side of the bridge the protestors never
reached. The day would be remembered as Bloody Sunday, a turning point in the Civil Rights
Movement.11 Global outrage prompted LBJ to demand Congress send him the “goddamnest
toughest” voting rights bill in addition to the civil rights act already passed.12
The Voting Rights Act (VRA), signed into law on August 6, 1965, has a
comprehensive amount of protections that were originally intended to protect African
Americans from disenfranchisement, but have protected scores of other people to this day. In
some ways, the VRA was the final part of the Civil Rights Act of 1964 that had been diluted
11
Lawson, Steven F. Black Ballots : Voting Rights in the South, 1944-1969. Contemporary American History
Series. New York: Columbia University Press, 1976. Pg. 310 .
12
McCool, 2012, 4.
8
or compromised, as it was filibustered in the Senate. For Martin Luther King, Jr., the right to
vote was the “number one” civil right.13
The poll tax in federal elections had been repealed prior to Bloody Sunday by the
Twenty-Fourth Amendment, which was vigorously support by LBJ.14 VRA stopped short of
outlawing poll taxes in state elections within the VRA, for fear that the courts would find it
unconstitutional.15 This would give fodder to opponents of the VRA at a time when strong
support was necessary. Poll taxes on a state and local level were outlawed by the Supreme
Court, after LBJ directed the Department of Justice (DOJ) to sue states still using the taxes. In
Harper v. Virginia State Board of Elections (1944), the Supreme Court ruled that the state
and local poll tax was a directed disenfranchisement of the poor and a violation of the Equal
Protection Clause of the Fourteenth Amendment.16
Parts of the VRA affected the entire country, while some were targeted to the
Democratic Party’s political machine in the South. National voter-registration tests, literacy
tests, or tests “good moral character,” educational requirements, federal or state citizenship
questionnaires were outlawed by Sections 2 and 4.17 Though seemingly obvious as to why
the tests mentioned in Section 4 should be obvious, and without yet detailing the other
sections, the ban on literacy tests was considered a “radical” expansion of voting reform.18
But the unequal application of literacy tests against poor and black voters was enough to
persuade President Johnson to enter it into the VRA after unsuccessful attempts to insert it
into the Civil Rights Act of 1964.19
13
Hillstrom 2009, 82.
Hillstrom 2009, 58.
15
Ibid., 94.
16
Harper v. Virginia State Board of Elections (1944) 383 U. S. 666.
17
Hillstrom 2009, 95-96.
18
Landsberg, Brian K. Free at Last to Vote: The Alabama Origins of the 1965 Voting Rights Act. Lawrence,
Kan.: University Press of Kansas, 2007. Pg. 167.
19
Ibid., 168
14
9
Special and emergency provisions of the VRA targeted the South directly, specifically
Sections 3 and 5. Certain jurisdictions where “literacy texts or similar devices had been used
to determined citizens’ eligibility to vote, or where voter turnout for the 1964 presidential
election was less than 50 percent of eligible adults” are regulated by this section.20 Under
Section 3, almost every state in the Deep South and Alaska was subject to voter registration
and poll site monitoring by federal officials of the U.S. Justice Department.21 Also, areas
subject to monitoring must also receive federal approval before making any changes to their
election laws, either regarding registration or the actual act of voting.22 This section still
governs parts of the South; when South Carolina submitted its voter identification
requirements last year, the District of Columbia District Court precleared it, but ordered the
state to wait until this year to be implemented.23 The DOJ could also grant preclearance, and
this route was often preferred because it was less expensive and more amicable than
litigation.24 At first this route was preferred for Southern states, especially when redistricting
plans were drawn up. However, DOJ clearance and changes to approved plans could not be
appealed to the executive department itself; the state would still have to go through the DC
District Court.25 The VRA still recognized the role the federal government can play in the
voting process, considering states, for all intents and purposes, are in charge of voting
processes. Nondiscriminatory regulations remained untouched by the VRA, including setting
time frames for voter registration (which had been abused by Mississippi registrars),
prohibiting felons from voting, and showing some kind of identification.26
20
Hillstrom 2009, 96.
Thernstrom, Abigail M. Voting Rights--and Wrongs : The Elusive Quest for Racially Fair Elections. Blue
Ridge Summit, PA: AEI Press. 2009. Pg. 31.
22
Hillstrom 2009, 97.
23
Ross, Janell. “Voter ID Laws, In Texas And Elsewhere, Face Continued Legal Wrangling.” August 31, 2012.
Huffington Post. Retrieved February 17, 2013. http://www.huffingtonpost.com/2012/08/31/voter-id-lawstexas_n_1844214.html
24
Thernstrom 2009, 30.
25
Ibid., 31.
26
Hillstrom 2009, 98.
21
10
Section 5 had a sunset clause of last five years, to give a future Congress the ability to
review whether such regulation was still necessary provided that barriers eliminated would
help reshape Southern political infrastructure and prevent voter suppression from happening
on such a scale ever again. In the first few years of the VRA, voter registration among blacks
reached unprecedented numbers, proving that the obstructionist tools that were prima facie
nonracial and nondiscriminatory were very much the opposite. Just six months after the
signing of the VRA, a total of over 300,000 African Americans registered to vote, helping
dismantle segregationist support in state governments, especially the legislatures.27 There was
an average 25 percent increase in black registered voters from 1965 to 1968, where 52
percent of voting-age African Americans voted.28 Unsurprisingly one of the biggest jumps in
the African American registration was in Mississippi, home of the Mississippi Democratic
Freedom Party that brought national attention to the plight of the disfranchised straight to the
Democratic National Convention of 1964 to Atlantic City. At the time of the VRA, less than
seven percent voting-age blacks were registered in state. Two years later, that number was 60
percent.29
The Supreme Court, in this five year period upheld the constitutionality of the act
twice. In South Carolina v. Katzenbach (1966), the Court held that while voting was a
practice conducted and delegated to the states by the Constitution, the southern states
continued disregard for the protections of the Fifteenth Amendment could not be ignored.30
Section 2 of the Fifteenth Amendment gave Congress the authority to carry out the VRA and
“it may use any rational means to effectuate the constitutional prohibition of racial
discrimination in voting.”31 Three years later, the Court heard Allen v. State Board of
27
Hillstrom 2009, 100.
Ibid., 98-100.
29
Thernstrom 2009, 32.
30
South Carolina v. Katzenbach (1966) 383 U. S. 310-315, 327.
31
Allen v. State Board of Elections (1969) 383 U. S. 324.
28
11
Elections (1969) granted the Voting Rights Act even clearer power under preclearance of
Section 5. In the majority opinion, the Court ruled that Congress intended “that all changes,
no matter how small, be subjected to § 5 scrutiny.”32 Considering even the smallest changes
in registration or polling procedure historically managed to “dilute” the African American
vote, the exact ill that the VRA was intended to dispel. For example, the Justice Department’s
aforementioned jurisdiction over redistricting originated from the Allen ruling, not the bill’s
original 1965 understanding. The Court’s interpretation shows how Section 5 was changed
“simply to open the doors of electoral opportunity...into an effort to protect minorities for any
measure that might weaken their electoral strength--and then into one requiring proactive
efforts to maximize their political power.”33
At the end of the five year period, Congress reauthorized Section 5, and the
benchmarked used to determine whether federal supervision may be necessary at polling
places suddenly extended to states like Wyoming and New York, which had no history of
voter discrimination, suppression, or intimidation regarding the African American
community. This happened repeatedly as the general level of political participation dropped
across the country when the VRA was amended in 1975, although the VRA started taking on
a much larger obligation than ensuring just African Americans had the right to vote. Texas,
subject to preclearance, had been ordered to print ballots in English and in Spanish, because
the 1975 amendments equated English-only ballots to Spanish-speaking citizens as a literacy
tests. The VRA was reauthorized in 2006 to expand protections to persons with disabilities
and other racial minorities, such as Hispanics and Native Americans. Section 5 was
reauthorized with little formal opposition from either party.34
32
Allen v. State Board of Elections (1969) 393 U. S. 568
Thernstrom 2009, 32.
34
Ibid., 35-37.
33
12
Southern Democrats were not quick to switch their allegiance to the Republican Party.
Their several attempts to create third parties or disrupt the national Democratic Party are
reflected in the presidential elections from 1948 to 1980. The southern states’ electors are
shared between parties at the movement's emergence, but solidify multiple times around a
third party candidate or have faithless electors that do not vote for the winner of state’s
popular vote, similar to Kennedy’s election. Since 1980, Virginia and North Carolina were
the only southern states to vote for a Democratic candidate in a presidential election, both in
2008.
The desire to operate as a regional party can be further reflected with looking at the
governors of these states since the Civil Rights Movement. Mississippi went more than a
century without electing a Republican governor. After 1992, three of the four governors were
Republicans. In Alabama, Democrats controlled the governor’s mansion from 1874 to 1987.
Four of the last six governors were Democrats. A similar story follows Georgia, where it had
only Democratic governors from 1872 to 2003, and has since had two governors, but both of
them were Republicans. The political landscape has dramatically changed in the past thirty
years alone.
Interestingly enough, the full throttle approach of embracing the Civil Rights
Movement in LBJ’s full term as president spelled disaster for the Democratic Party on the
national level, but not the state level. The idea of a regional political machine resisted the
powerful tide of new voters entering the political process and old voters switching parties. As
the social conservatives fled en masse to the Republican Party at the end of the twentieth
century, the desires to keep regional political control remains, but the demographics are not
on the Republican Party’s side. They have failed to win the popular vote in five of the six
past presidential elections. In 2008, as the economy fell apart, it was clear the Republican
Party that controlled Congress and the White House, would pay heavily. Despite a relentless
13
bout of political obstructionism against President Barack Obama from the moment he was
sworn in, they failed to capture the Senate and White House and sustained losses in the
House of Representatives during a weak favorability toward incumbents. However,
conservative Republicans now control more states than Democrats in terms of legislatures
and governors, including every state in the South except for Arkansas, which has a
Democratic governor.
To return the Republican Party to its heyday of political power, controlling the agenda
on a state-by-state basis is a prudent methodology. However, their rise on this local level is
rather new, and careful analysis of the rapid demographic, political, and institutional change
since President George W. Bush’s first term is necessary to understand how the VRA’s reach
is broad but imperfect—and in jeopardy.
Bush, Gore, and Crawford
Starting with FDR and going to the end of LBJ’s presidency, the demographic switch
of the parties was noticeable, and not just from hindsight. As FDR’s New Deal and LBJ’s
Great Society programs sought to ameliorate the plight of the poor, they helped a large
number of African Americans, who were more likely to be poor than their white counterparts.
The national Democratic Party because increasingly run by Northerners (FDR was from New
York, Adalai Stevenson who lost to Eisenhower twice was from Illinois, JFK from
Massachusetts), and the social welfare programs continued to expand even under southerner
LBJ. Before Obama, the only three successful Democratic presidential candidates were
southern: LBJ hailed from Texas, Jimmy Carter from Georgia, and Bill Clinton from
Arkansas. Southern conservatives’ repeated break with the Democratic Party eventually
found their home in the Republican Party, and white liberals began to switch allegiance from
the GOP as well. Very little attention was paid to the integrity of the federal, state, or local
14
voting systems in the country prior to the 2000 president election, which inadvertently set the
stage for the modern battle on voting regulation and modernization. Hanging chads, absentee
ballots, and rapid judicial proceedings perturbed Americans more than a month after the race
had been called for Al Gore, then Bush, then simply too close to call.
As demonstrated by the stark past difference of the parties, voter intimidation is not a
party issue but an ideological issue. The historical arc of suppression and intimidation reads
that anyone of a more conservative political ideology is more likely to support stronger voter
protection laws that construct a more rigid infrastructure for the government to confirm, both
at registration and voting time, that people are who they say they are, and only citizens are
being registered. Liberals are more partial to the idea that barriers of any kind of the voting or
registration processes must be eliminated.35
Volumes of literature have been dedicated to the politics surrounding voter
suppression in our modern political environment, but this paper will focus on the effects of
voter ID laws. These laws include any state or local ordinance that requires the person voting
to prove that the person is who she says she is by showing some sort of photo ID. Proponents
of these laws exist on each part of the political spectrum, but this issue has become partisan
issue in the past few years. The idea that the voting and registration systems across the nation
needed thorough investigation entered mainstream political thought after Bush v. Gore (2000)
was decided, where theories ranged from voter fraud with outright racial animus to
conspiracy theories that the Florida secretary of state and candidate George W. Bush fixed
the race to hand the White House to the Republicans.36
35
John H. Fund, Stealing Elections : How Voter Fraud Threatens Our Democracy (San Francisco, CA:
Encounter Books, 2004). Pg. 13.
36
Ibid., 27.
15
President Bush and the Republican Congress wasted no time drafting legislation to
address the outdated voter systems. At the beginning of the president’s first term, the Help
America Vote Act (HAVA) was hotly debated in Congress. Democrats wanted the bill to
address what they believe to be the main causes that they lost Florida’s electoral votes: faulty
machines, purging of voter rolls, and “poorly trained poll workers.” Republicans focused on
voter fraud, the allegations of which were still red hot when debates in Congress began.
Republicans, in control of both house of Congress at the time, soon introduced the
idea to prevent fraud and make Election Day safe: identification requirements. The idea was
led by Senator Kit Bond of Missouri, and the idea instantly became a partisan issue. Voter ID
proponents argued that people need ID to do common day tasks like drive a car, buy alcohol,
or get into an age restricted movie, so requiring an ID to vote is not a farfetched idea.
Democrats called out this position as unfair to minorities and the elderly, who they claimed
are far less likely to own photo IDs.
A compromise was struck, and the final bill required that only people who were
registering for the first time in a given jurisdiction who registered to vote by mail
were required to present identification when registering, and, if they failed to do so,
present identification when registering, and, if they failed to do so, present
identification when voting. Moreover the identification required did not need to be a
photo ID…the bill did provide that this was a minimum standards and that states had
the latitude to go beyond it if they chose to do so.
HAVA also mandated that’s states upgrade their voting machinery, set up a system of
provisional ballots for voters whose names were not on the voter list, established the Election
16
Assistance Commission to lead more studies regarding improvements to be made in the
future, and authorized almost $4 billion to help states with the new standards.37
With the federal government taking a position on the voter ID question, the architects
of the state voter laws that have emerged since 2000 resided in state legislatures and
governor’s mansions. The first successful voter ID laws began in 2003. Alabama passed a
bipartisan identification law (§17-9-30) that year enumerating the types of ID a voter could
bring to the poll; otherwise he/she would have to cast a provisional ballot.38 The matter was
initially produced by Republicans who controlled the legislature and Democrats in the state
Senate responded with looser requirements that did not include a photo ID.39
Colorado’s voter ID law of 2003 was signed by Republican Governor Bill Owens,
who defended the law with an amicus brief when it was before Denver’s District Court on the
basis that it did not disenfranchised those who did not have ID.40 Montana, North Dakota and
South Dakota followed suit. Republican-controlled South Dakota went a step further than
Alabama did. Under what is being classified as a “non-strict” ID law, the statute requires the
voter to show a valid government photo ID (either from the government or university if the
voter is a student), but will still allow the person to vote if he/she does not have ID when they
vote as long as they sign an affidavit under penalty of perjury.41
Indiana, New Mexico and Washington added voter ID laws in 2004, all of them
requiring photo requirements. Indiana’s voter ID law took center stage in a Supreme Court
case known as Crawford v. Marion County Election Board (2008), because the state’s
37
Wang 2012, 78-79.
"Voter ID: State Requirements." National Conference of State Legislatures. Retrieved December 29, 2012.
http://www.ncsl.org/legislatures-elections/elections/voter-id.aspx#Legislation
39
Beyerle, Dana. “GOP, Democrats, push own agendas.” February 7, 2001. Tuscaloosa News.
http://www.tuscaloosanews.com/article/20010207/NEWS/102070304?p=2&tc=pg
40
Greene, Susan. "Owens Enters Voting-Rights Case Governor Supports Secretary of State in Lawsuit over
Provisional Ballots and Ids Voting-Rights Advocates Charge That Owens Is Making the Fight Partisan, but a
Backer Says the New Rules Aim to Prevent Fraud." Denver Post, 2004, 0-B.04
41
Lee, Suevon. “Everything You’ve Ever Wanted to Know About Voter ID Laws.” November 5, 2012.
ProPublica. http://www.propublica.org/article/everything-youve-ever-wanted-to-know-about-voter-id-laws
38
17
requirement to show proper ID at the polls was the strictest in the nation as of 2008.42 The
law was approved on party lines.43 Democrats protested that the bill was pushed through to
disenfranchise voters that tend to vote for Democrats, not to end the problem of voter fraud as
the Republicans had suggested. The court recognized that the Republican controlled
legislature and conservative Republican icon Governor Mitch Daniels passed with intentions
of not just preventing voter fraud, but also repressing voters who tend to vote for the
Democratic Party. Although there was a lopsided effect on certain voters, the 6-3 majority of
the Supreme Court concluded “a nondiscriminatory law is supported by valid neutral
justifications, those justifications should not be disregarded simply because partisan interests
may have provided one motivation for the votes of individual legislators.”44 The
conservatives on the Court, joined by Justice John Paul Stevens who authored the majority
opinion, were considering the voter ID laws under strict scrutiny and whether it would harm
the general population. Seeing no harm done to the population at large, Justices Scalia and
Thomas sided with Justices Stevens, Alito and Kennedy and Chief Justice Roberts.45
Perhaps the most surprising part of the opinion is that it recognizes the overly partisan
nature of the bill—and subsequently, the case. Crawford was combined with another lawsuit,
which is spelled out in the title of the case: Indiana Democratic Party, et al. v. Todd Rokita,
Indiana Secretary of State. The Democrats in Indiana were catching up to what became
common fact under the presidency of Barack Obama: strict photo ID laws disproportionately
affect populations that for vote for Democrats.46 The Indiana Democrats’ research had shown
that almost one million Hoosiers would be unable to vote in the general election, yet even
under the standard of strict scrutiny, this was not enough even at the district level to warrant a
42
Williams, David. "The Supreme Court and Indiana's Voter Id Law." Indiana Magazine of History 104, no. 4
(2008): 379.
43
Crawford v. Marion County Election Board (2008), 553 U.S. 201, Footnote 21.
44
Ibid., 553 U.S. 201.
45
Williams 2008, 382.
46
Wang 2012, 79.
18
judicial overruling.47 About eleven percent of Americans do not hold a government issued
ID, and they are much more likely to be African Americans, Latino, other racial minorities,
the poor, the elderly, and the disabled.48 Those under the poverty line are about twice as
likely to lack ID and blacks are more than three times as likely as whites to be without such
ID.49
The exit polls from the 2008 presidential election confirm the lopsided effect this
racial consequence has. According the CNN exit polling, 95 percent of African Americans
voted for Obama, as did 67 percent of Latinos, and 62 percent of Asians. Of those who made
less than $15,000 a year, 73 percent voted for Obama. For those making $15-30,000, 60
percent of the them voted for Obama; and for those making $30-50,000 (or just over the
poverty line), 55 percent voted for Obama. Even if voters graduated college, if they identified
as “non-white,” they were more likely to vote for Obama.50
In the time that the Indiana law worked its way to the Supreme Court, Ohio passed a
voter ID law requiring no photograph and Georgia provided photo IDs at no cost to the
citizen, at the Democrats’ behest.51 Georgia’s Republican-controlled legislature used the
motive of voter fraud to justify the need to pass the bill through without the provision to
make IDs free, with Democrats in both houses of the legislature stating liking the law to a
poll tax. The leader sponsor of the bill was inspired not by the psychological political scarring
from the 2000 election but by conservative blogger Erik Erickson, whose is now the editor in
47
Epps, Garrett. 2008. "The Voter ID Fraud." Nation, January 28. 13-15. Academic Search Premier,
EBSCOhost (accessed March 6, 2013). Pg. 13
48
Wang 2012, 83. Epps 2008, 13.
49
Wang 2012. 83.
50
“Exit Polls.” CNN. Retrieved January 14, 2013.
http://www.cnn.com/ELECTION/2008/results/polls/#val=USP00p1
51
Epps 2008, 14.
19
chief of RedState.com (and regularly contributes to Fox News, according to his Twitter
page).52
Emboldened by the Crawford ruling, an explosion of voter ID proposals emerged on
the state level over the next four years. Utah, Idaho, Oklahoma, Kansas, Mississippi, Rhode
Island, Wisconsin, New Hampshire, Pennsylvania and Virginia passed new laws while
Alabama, South Carolina, Tennessee and Texas tightened their existing laws to require photo
ID. All of these states had Republican governors except for Rhode Island.53 The new laws in
Texas and South Carolina are on hold pending Section 5 preclearance. Governors in
Minnesota, Missouri, Montana, New Hampshire and North Carolina vetoed strict new photo
ID laws in 2011, and voters killed a voter ID proposal in the 2012 elections.54 All of these
laws were adopted under the argument that it combats the persistent problem for voter fraud
that decreases the electorate’s confidence in the democratic process. Even with Crawford as
precedent, voter fraud remains a suspect motivation shared mostly by one end of the political
spectrum, but whether it truly lives up to the threat that it is warrants serious discussion.
Fraudulent Claims of Voter Fraud
Voter fraud involves more than someone voting under someone else’s name. It can be
voting twice, lying about one’s citizenship status, or buying off an unregistered voter and
bringing them to a polling place where they can register at the polling place then vote
immediately thereafter. Also, voter fraud is more likely to happen in cities than any other
parts of the country.55 Following the 2000 presidential election, President George W. Bush
directed his Attorneys General to vigorously search, investigate, and prosecute voter fraud.
The fight to discover the extent of voter fraud on every election level took a partisan turn, and
52
Wang 2012, 80. Erickson’s Twitter can be found at https://twitter.com/EWErickson
“Ann Coulter says Rhode Island’s voter-identification law was pushed by black legislators in the state House
and Senate.” September 27, 2012. http://www.politifact.com/rhode-island/statements/2012/oct/03/anncoulter/ann-coulter-says-rhode-islands-voter-identificatio/
54
“Voter ID: State Requirements,” 2012.
55
Fund 2004, 5.
53
20
has not recovered since despite the Court-backed rational of ID laws to protect elections from
fraud.
Voter fraud, like suppression, has historically been a bipartisan effort from the
presidential election of 1960 to local elections in Louisiana and Kentucky. There is an
argument that says “Republican election fraud is less common” because a middle-class voter
is more likely to vote Republican and would not respond to promises like money or a meal in
exchange for a vote. Democratic voter fraud is allegedly more common for the converse
reason: cities tend to lean more Democratic, and more poor people live in the urban citizens
and can be easily bought off. This argument is detailed by John Fund, self-proclaimed
Libertarian and author of the book Stealing Elections. The book relies on Rasumessen polls,
which have a questionable conservative lean.56 Yet it also has testimony from experts like Dr.
Larry Sabato, who is one of the most respected contemporary political scientists. Indeed the
author details several Democratic voter fraud examples including the one-party rule of
Hawai’i, Lyndon Johnson’s senate race, Richard Daley’s rule over Chicago, Texas
Representative Ciro Rodriguez, and the conviction of Representative Austin Murphy in a
1998 absentee ballot fraud case.57
What Stealing Elections reveals is something quite telling about how much the public
trusts the election process to be fair from beginning to end. If the Rasmussen polls conducted
exclusively for the book are accurate, the minority party is more likely to believe the process
in unfair.58 Fund’s work was written shortly before the 2004 election, so it is safe to say that
Democrats were very much the minority party. This analysis is crucial to tie to the earlier
competing visions that Democrats want no laws that can even be construed as a barrier and
56
Silver, Nate. “Rasmussen Polls Were Biased and Inaccurate; Quinnipiac, SurveyUSA Performed Strongly.”
November 4, 2010. The New York Times: FiveThirtyEight. Accessed March 15, 2013.
http://fivethirtyeight.blogs.nytimes.com/2010/11/04/rasmussen-polls-were-biased-and-inaccurate-quinnipiacsurveyusa-performed-strongly/
57
Fund 2004, 5-8.
58
Ibid., 17.
21
Republicans are willing to make tighter election laws if it means fraud is reduced. If
Democrats were the party out of power and were vigorously trying to dismantle the
registration and voting requirements formulated in Congress, Republicans should be trying to
do the same now. This line of reasoning would confirm that the voter ID battles should
inherently have a Republican offensive, as they tried to win back the Senate and White House
this past November. Republicans can be considered the party out of power, but not across the
nation. In an effort to control the national government, and especially the presidency,
Republicans should be likely to respond that they find fraud to be a huge problem and voter
ID laws are the solution. Coincidentally, that is exactly what played out in the past federal
election and was incubating on the state level once Barack Obama was elected president.
Of course, in the age of immense information readily available at any time, a party or
organization could not get away with just saying that a problem exists and then providing no
data. But, as Fund points out, perceptions of the problem shape our discussion of whether the
problem even exists.59 Voter fraud happens, and that is a fact. Furthermore, perhaps
Democrats commit more voter fraud than Republicans as Fund argues—or at the very least,
they are the most likely to get caught. But if voter fraud is more likely to happen amongst the
poor and the urban-dwellers, that means minorities are more likely to be at the heart of it
since racial minority communities tends to cluster in the cities and vote Democratic. To
combat rampant fraud, ID laws would help protect poor people from being cajoled into fraud
and stop perpetrators in their tracks.
The data tells a more interesting story. From 2000 to August 2012, there have been
2,068 allegations of voter fraud, according to one of the most comprehensive studies
59
Fund 2004, 15.
22
heretofore compiled.60 The records are a result of an effort where News21 sent requests to all
fifty states “asking for every case of fraudulent activity including registration fraud, absentee
ballot fraud, vote buying, false election counts, campaign fraud, casting an ineligible vote,
voting twice, voter impersonation fraud and intimidation.”61 Of these, in-person voting
totaled ten cases, or one half of one percent of all the allegations.62 In-person voter fraud is
the only fraud that a voter ID law could eliminate.63 This means that for all the merits and
disadvantages of a voter ID law, states will still have to combat over ten other types of voter
fraud, the most prevalent being absentee voter fraud—the fraud that HAVA targeted with
voted ID laws.64 Even if all of the “unknown” causes of voter fraud that were obtained by the
reporters were in-person fraud, this kind of fraud would only be the third most comment
fraud behind registration fraud.65
The study goes a step further in informing the public that the partisan push to sound
an alarm on in-person voter fraud. The Republican National Lawyers Association (RNLA)
has periodically updated their website with a new allegation of voter fraud. At the time that
“Election Fraud in America” was published, RNLA documented 375 cases of election fraud,
and voters were accused of committing fraud in only 77 of those cases. The rest of those
cases had unknown perpetrators or were allegedly committee by campaign staff and/or their
candidates. 66 Since November of 2011, the RNLA has linked to five cases of alleged voter
60
Khan, Natasha and Corbin Carson. “Comprehensive Database of U.S. Voter Fraud Uncovers No Evidence
That Photo ID Is Needed.” August 12, 2012. News21. Date retrieved March 14, 2013.
http://votingrights.news21.com/article/election-fraud/
61
Khan and Carson, 2012.
62
News 21 Staff and Corbin Carson. “Election Fraud in America.” August 12, 2012. News21. Retrieved March
14, 2013. http://votingrights.news21.com/interactive/election-fraud-database/
63
Carson, Corbin. “Exhaustive Database of Voter Fraud Cases Turns Up Scant Evidence That It Happens.”
August 12, 2012. News21. Retrieved March 14, 2013. http://votingrights.news21.com/article/election-fraudexplainer/
64
Wang 2012, 76-77.
65
Corbin 2012.
66
Kahn and Carson 2012.
23
impersonation (with no detail as to whether they were successfully convicted).67 In the end,
the most comprehensive numbers that exist show that of 146 million voters since 2000, one
out of every 15 million allegedly committed in-person voter fraud—rendering in-person voter
fraud almost nonexistent.68
For the type of voter fraud that strict ID laws are trying to eliminate, proponents of the
laws have “drastically exaggerated the extent of polling-place fraud” since the 2000 election
that founded the momentum of these laws.69 Tova Andrea Wang, author of The Politics of
Voter Suppression (which was published in the same month as the News21 study), provides
an explanation as to why in-person fraud is at the bottom of the fraud list:
Just to change one vote, a would-be perpetrator would have to know in advance who
on the registration list is not going to show up so that he can come in and say he is
that person. If the person is caught, he receives five years in jail and a $10,000 fine. If
he is not a citizen, he is deported...Someone who really wanted to have an impact on
the election outcome would be much better advised to engage in absentee ballot fraud
or buying votes, forms of vote fraud that actually do take place.70
This simplified version begs a retort: if everyone thought like this, than no one would commit
any crime that led to a hefty fine or jail time, yet people continue to perpetrate crimes with
worse sentences. For this, there is no theoretical answer but only a reliance on the numbers
that exist independent of Wang’s analysis showing that in-person fraud is so uncommon that
one is more likely to hit by lightning.71 And as for urban, Democratic centers being the
bastion of voter fraud, the five states with the most cases of voter fraud are Kansas (97 known
67
“Vote Fraud News.” Republican National Lawyers Association. Retrieved March 14, 2013.
http://www.rnla.org/votefraud.asp
68
Kahn and Carson 2012.
69
Wang 2012, 79.
70
Ibid., 80.
71
“Policy Brief on Voter Identification.” September 12, 2006. The Brennan Center for Justice. Retrieved March
14, 2013. http://www.brennancenter.org/analysis/policy-brief-voter-identification
24
cases), Connecticut (84), Georgia (80), Wisconsin (45), and Washington(35).72 Only
Connecticut and Washington have Democratic-controlled state governments and Connecticut
does not have a major urban city.
Racism, Classism, or Just Plain Politics?
Assuming in-person voter fraud was truly a problem in any given state, voter ID laws
are a legal and troublesome remedy. In the past four years, as has been mentioned before,
certain states are being classified as “strict” and “non-strict” ID laws. “Non-strict” ID laws
are ones that have been around in states for quite some time and created little sensationalism
in the political media: a voter can provide a poll worker with a copy of his or her utility bill,
university ID, or recent pay stub in lieu of a U.S. passport or driver’s license. “Strict” ID laws
are the focus of the growing debate circling whether voter ID laws on the whole amount to a
contemporary act of suppression. Strict laws require a state or federal photo ID (not
necessarily a driver’s license). If one cannot be provided at the ballot booth, the voter may or
may not be required to swear an oath that he/she is a citizen that is allowed to vote (for this
state this means that the voter is not a convicted felon). Then the voter will complete a
provisional ballot. The strictest states require that the voter report to a state government
building (most likely the Department of Motor Vehicles) and show the required ID, or state
government workers will have to verify that person’s citizenship in order for the provisional
ballot to be counted to the total. Failure to follow up results in the vote being discarded.
The significant amount of obstacles and double-checking that goes into this process
is, as Crawford affirmed, an effort to mitigate voter fraud. There is another part of Crawford
that has disturbed voting rights activists: the disproportional effect these laws have in taking
72
McClellan, Nick. “How Much Voter Fraud Is There?” September 18, 2012. Slate. Retrieved March 14, 2013.
“http://www.slate.com/articles/news_and_politics/map_of_the_week/2012/09/voter_id_laws_a_state_by_state_
map_reveals_how_much_voter_fraud_there_is_in_the_united_states_almost_none_.html
25
away the vote on racial minorities (who tend to vote Democratic) and the elderly. Prima facie
the argument to establish voter ID laws is sound: If patrons at a movie theater, customers at a
liquor store, or passengers on an airplane are all required to show ID, why should something
as important as voting have the same added level of security? And don’t most United States
citizens have ID anyway?
The difference between buying a ticket to one’s favorite vacation spot and voting for
one’s mayor is that the latter is a civil right than cannot be obstructed, as explicitly stated in
the Constitution. The former is a privilege. When it comes to all rights as basic as voting,
“even the fundamental rights of the Bill of Rights are not absolute,”73 so regulation is
certainly not without precedent. Yet new information is available that may have informed the
extent to which the Supreme Court ruled in Crawford. Despite the example given above,
these transactions that require ID invoke an assumption that cannot be made about millions of
Americans: any certain person has the funds to buy a theater ticket, a bottle of wine, and a
plane ticket. It may not be socially obvious to the regular consumers, but these Americans
living below the poverty line may not been required to show ID because they do not have the
funds nor the time to engage in leisurely activities. It is estimated over 30 million people do
not hold an ID that passes a strict voter ID requirement.74 The political question that needs to
be answered is: are states ready to block or stymie the right to vote for eleven percent of the
country to decrease the roughly two thousand cases of voter fraud that have occurred since
Bill Clinton left the White House?
In reality, the question goes deeper than that. Intent is very difficult to prove in the
current political atmosphere, because economic arguments are more politically palatable than
racial arguments. For this reason, disenfranchising the poor through strict voter ID laws is
73
74
Kovacs v. Cooper (1949) 336 U.S. 77 , 85.
Wang 2012, 83.
26
synonymous, for some political activists, with disenfranchising minorities. A brief from the
Brennan Center for Justice parses the strict and non-strict requirements with the following
findings:
ID requirements fall hardest on people who have traditionally faced barriers at the
polls. The impact of ID requirements is even greater for the elderly, students, people
with disabilities, low-income individuals, and people of color. Thirty-six percent of
Georgians over 75 do not have a driver’s license. Fewer than 3 percent of Wisconsin
students have driver’s licenses listing their current address…African Americans have
driver’s licenses at half the rate of whites, and the disparity increases among younger
voters; only 22% of black men aged 18-24 had a valid driver’s license. 75
The non-partisan Black Youth Project issued its own study that corroborates the Brennan
Center’s findings for minority youths; strict voter ID laws could keep anywhere between
538,000 and 696,000 voters from the polls. In a state by state breakdown, the margins were
wide enough to decided battleground states like Virginia, Pennsylvania, and Florida for
Republicans, since students also tend to vote Democratic.76 Nationwide, as many as “25
percent of African Americans and 18 percent of Latinos don’t have government-issued photo
ID.”77
Georgia ran into problems with its voter ID laws, as it was one of the first to require
strict photo ID. These licenses are expensive for poor Americans.78 In response, courts have
required these regulations to provide identification free of charge for anyone who wishes to
75
“Policy Brief on Voter Identification,” 2006.
Rogowski, Jon and Cathy Cohen. “Turning Back the Clock on Voting Rights: The Impact of New Photo
Identification Requirements on Young People of Color.” Black Youth Project. Retrieved March 19, 2013.
http://research.blackyouthproject.com/files/2012/09/Youth-of-Color-and-Photo-ID-Laws.pdf
77
Lee, Trymaine. “Voter ID Laws Backed By Black Republicans Without Dividing Loyalties.” September 18,
2012. Huffington Post. Retrieved March 19, 2013. http://www.huffingtonpost.com/2012/09/17/voter-id-lawsblack-republicans_n_1892013.html
78
Wang 2012, 88.
76
27
obtain them. States like Wisconsin attempted to circumvent this judicial ruling as well. The
law was passed by a Republican legislature and Republican Governor Scott Walker, a rising
conservative star. Although the law permitted the Wisconsin DMV to issue free-of-charge
IDs instead of the regular $28 ones, DMV officials were actively advising employees not to
alert the customer that a free one was available.79 This law was later struck down by the
Wisconsin Supreme Court.80
The idea that certain politicos could even play ignorant to the problems wrought in a
strict voter ID law is not acceptable, as a case study in Pennsylvania politics will
demonstrate. The Keystone State has consistently voted Democratic in every presidential
election since 1992; state politics have been less consistent. During the rise of the
conservative Tea Party movement, Pennsylvania’s legislature was firmly conservative
Republican and the governor’s mansion occupied by the same. In March 2012, state
Republicans were able to pass the bill over Democratic objections. A lawsuit against the state
quickly followed, as did a curious admission. During the investigation of how necessary a
strict voter ID law was, the state signed a stipulation agreement confirming that “have been
no investigations or prosecutions of in-person voter fraud in Pennsylvania; and the parties do
not have direct personal knowledge of any such investigations or prosecutions in other states”
and “in person voter fraud is likely to occur in November 2012 in the absence of the Photo ID
law.”81
79
“Wisconsin official told DMV not to push free voter ID cards.” September 8, 2011. Huffington Post.
Retrieved March 27, 2013. http://www.huffingtonpost.com/2011/09/08/wisconsin-official-toldd_n_953303.html
80
League of Women Voters v. Scott Walker (2012) 11 CV 4669, pages 3 and 4.
http://gab.wi.gov/sites/default/files/publication/137/league_of_women_voters_v_walker_sj_decision_2_pdf_16
852.pdf
81
Reilly, Ryan. “Ahead Of Voter ID Trial, Pennsylvania Admits There’s No In-Person Voter Fraud.” July 24,
2012. Talking Points Memo. Retrieved March 19, 2013.
http://tpmmuckraker.talkingpointsmemo.com/2012/07/pennsylvania_voter_id_no_in_person_voter_fraud.php
28
Further analysis proved that state was wrong on their projection of how many people
lacked identification before the presidential election. The Pennsylvania Secretary of the
Commonwealth Carol Aichele previously claimed that 99 percent of Pennsylvanians had ID,
but truly only 90 percent of the state did (in line with the national average).82 Those 758,000
citizens without ID were heavily populated in Pittsburgh and Philadelphia, Democratic
strongholds. Furthermore blacks were 85 percent less likely to own the required ID than
whites, and Latinos were 108 percent less likely.83 The law cannot simply be chalked up to
racial animus because the effects were similarly damaging to students and, above all, the
elderly.84 If racial animus is difficult to prove, partisan motivation is not. Before the
Pennsylvania law’s strictest requirement (turning away a voter who did not have photo ID)
was turned over, Republican State House Majority Leader Mike Turzai listed the voter ID bill
as significant Republican accomplishment “which is going to allow Governor [Mitt] Romney
to win the state of Pennsylvania” in the upcoming election, next to their prolife and pro-gun
laws.85
Almost every nonpartisan study of the strict voter ID laws has proven that there is a
disproportionate effect on the voters who vote Democratic on both a state and federal level.
This doesn’t mean that the laws themselves are racist, as Crawford has underscored. In
Pennsylvania, the elderly were the hardest hit, and Wisconsin, it was the poor. But since the
poor in this country are disproportionately minority, states run the risk of falling victim to the
same smoke and mirrors the Democratic Party played in the South during their one-party
82
Warner, Bob. “Voter ID law may affect more Pennsylvanians than previously estimated.” July 5, 2013.
Philadelphia Inquirer. Retrieved March 19, 2013. http://articles.philly.com/2012-0705/news/32537732_1_voter-id-new-voter-id-cards
83
Froomkin, Dan. “Pennsylvania Voter ID Law Hits Philadelphia Blacks, Latinos Harder.” August 7, 2012.
Huffington Post. Retrieved March 19, 2013. http://www.huffingtonpost.com/2012/08/07/pennsylvania-voter-idphiladelphia-blacks-latinos_n_1752480.html
84
Warner, Bob. “Analysis: ID law will most affect Philly voters over 80.” July 18, 2012. Philadelphia Inquirer.
Retrieve March 19, 2013. http://articles.philly.com/2012-07-18/news/32714873_1_id-law-penndot-id-absenteeballot-applications
85
Weinger, Mackenzie. “Mike Turzai: Voter ID helps GOP win state.” June 25, 2012. POLITICO. Retrieved
March 20, 2013. http://www.politico.com/news/stories/0612/77811.html
29
rule: writing laws that affect each race equally, yet executing them without equity. It also
helps to be mindful that Democrats pushed through a voter ID law in Rhode Island, and even
polls in heavily Democratic New York City have been accused of disproportionately
intimidating Asian Americans while letting white voters move through unabated.86 In
conclusion, the partisan nature of the strict voter ID laws cannot be ignored: the fight to
install these barriers to voting not only misses a chance to solve a real issue, it exacts
collateral damage heavily concentrated among the poor, the young, the racial minorities, and
the elderly. It cannot be construed as mere coincidence that the combination of these laws
disadvantage these demographics, as they clearly damage the Democratic vote to ensure
states like Pennsylvania go to candidates like Governor Romney.87
Analyzing the Court: Shelby v. Holder
In February 2013, the Supreme Court heard oral arguments in Shelby v. Holder. In
this case, The Court granted a writ of certiorari to answer one question: “Whether Congress’
decision in 2006 to reauthorize Section 5 of the Voting Rights Act under the pre-existing
coverage formula of Section 4(b) of the Voting Rights Act exceeded its authority under the
Fourteenth and Fifteenth Amendments and thus violated the Tenth Amendment and Article
IV of the United States Constitution.”88 Section 4(b) “contains a formula that, as originally
enacted, applied section 5's pre-clearance requirements to any state or political subdivision of
a state that “maintained a voting test or device as of November 1, 1964, and had less than
50% voter registration or turnout in the 1964 presidential election;” Congress further
reworked to include counties across the country in the wake of substantial evidence (provided
86
“Policy Brief on Voter Identification,” 2006.
Wang 2012, 125.
88
ORDER LIST: 568 U.S. November 9, 2012. Supreme Court of the United States. Retrieved March 20, 2013.
http://www.supremecourt.gov/orders/courtorders/110912zr_d18e.pdf
87
30
by the Department of Justice) that voter intimidation and suppression was still a problem in
the US and was no longer solely an African American problem.89
The reauthorization of the VRA in 2006 met little to no resistance in the Republican
Congress by either party and was swiftly signed by President Bush. The challenge is coming
from Shelby County in Alabama from those who argue that Section 5 did its job, and no
longer needs to be enforced. It may politically popular to pass this law, as was suggested
during oral arguments. However, federal supervision of every detail in local elections has
made the election hypersensitive to race again by essentially creating district that absolutely
will elect minority candidates, according to speculators, which was originally raised as a
concern in Georgia v. Ashcroft (2003).90
While a decision has yet to be released by the Court, a health amount of speculation
has gone into how the conservative justices (Chief Justice Roberts, Justices Scalia, Thomas,
and Alito), Justice Kennedy as a moderate, and the liberal justices (Justices Sotomayor,
Breyer, Kagan and Ginsburg) will come down on this issue. Justice Thomas has already
expressed the idea that Section 5 preclearance is unconstitutional in a case that also sued
Attorney General Eric Holder over the VRA.91 It seems likely the other conservatives will
join in an opinion that claims that Section 5 has outlived its time and the imbalance in
federalism is inappropriate for the time.
In the words of Northwest Austin Municipal Utilities District No. 1 v. Holder (2009),
the South has changed. This is no less true than the idea that in some parts of the country,
voter fraud really does happen. But this change is not complete, and as Justice Sotomayor
pointed out in oral arguments, Shelby County in Alabama was a particularly discriminatory
89
Shelby County v. Holder, 679 F.3d 856
Shelby County v. Holder, 679 F.3d 856
91
Northwest Austin Municipal Utility District No. 1 v. Holder (2009) 557 v. 212
90
31
county to bring this suit forward.92 The conservatives in Court called into question the idea
that the federal government should be so meticulous in states that have historically been
discriminatory yet have a better track record of minority participation now than states that are
considered liberal and free of voter intimidation. So while the formula is primarily in
question for some on the Court, there is a significant chance that all of Section 5 will be
overturned for fear that Congress would never strike down or refuse to authorize the “racial
entitlement” that is the VRA, as Justice Scalia called it.93
Voter ID laws are not at the heart of Shelby, but if Section 5 is overturned by the
Courts, the ramifications can be inferred. Alabama, Mississippi, South Carolina and Texas
have proposed voter ID laws for future elections with the last two being “strict,” meaning a
driver’s license or government issued photo ID only. All of these proposals need preclearance
under Section 5, are controlled by Republicans, and have significant minority communities.
Without Section 5, Texas would have been allowed to proceed with its original voter ID law
that was found to disproportionately disenfranchise black Texans.94 So far, this paper has
demonstrated that voter ID laws are not a sectional problem but a matter of perspective.
However, if left unchecked by the powers Congress created under Section 5, voter
suppression can happen swift in the Republican-controlled South by not targeting African
Americans but Democrats. This would return the South to a one-party rule akin to the
beginning of the last century.
This one-party rule poses a serious threat to voting as Americans know it today. The
events of the 1960s were built on a clear narrative that whites were trying to curb the black
92
Howe, Amy. “Will Section 5 survive? The Shelby v. Holder argument in Plain English (with audio).” March
6, 2013. SCOTUSblog. Retrieve March 20, 2013.
93
Denniston, Lyle. “Argument recap: Voting law in peril — maybe.” February 27, 2013. SCOTUSblog.
Retrieved http://www.scotusblog.com/?p=160155
94
Savage, Charlie and Manny Fernandez. “Court Blocks Texas Voter ID Law, Citing Racial Impact.” August
30, 2012. New York Times. Retrieved on March 20, 2013. http://www.nytimes.com/2012/08/31/us/court-blockstough-voter-id-law-in-texas.html?_r=0
32
turnout, especially if they were Republican. Under the administration of the country’s first
African American president, to claim overt racial animus would be political suicide as a
national platform, even if it does attract a solid core voting bloc in various locales. To be
overtly racist is not a winning strategy, but subliminal marginalization makes voter ID laws
extremely difficult to parse. This difficulty was the very reason the VRA was constructed in
the first place. Voting regulations that were prima facie nonracial had lopsided racial effects.
This time, however, racial animus is harder to prove because the justification used is “voter
fraud,” which is demonstrably exaggerated yet still a valid cause for regulation. In this phase
of voting laws, identification laws eliminate political competition regardless of one’s race. As
made clear in Crawford, political ambition does not make a law unconstitutional if a proper
motive is present and applicable. In the way that voter fraud certainly exists on a small scale,
so does voter suppression.95
The Political Rhetoric of Jim Crow II
Discussions regarding Jim Crow are not to be taken lightly, and neither are
comparisons to the era. While comprehensive research lacks in the relatively new
developments on these laws, the allegation that voter ID laws are the new Jim Crow has a
foundation in the disproportionate effect on minority voters—and not just African Americans.
However, likening this to the era of racial epithets, state-sponsored violence, and cultural
revolution that was 1950s and 1960s may be an exaggeration at best and a discredit to the
struggles therein at worst.
The allegations of Jim Crow II, as this paper will call the claims for voter ID laws in
today’s politics, are founded with presupposition that the government is purposefully
blocking and marginalizing the minorities in this country for no better reason than blatant
95
Fund 2004, 15.
33
racism. The last part of this sentence is the most important. As mentioned before, racism is
extremely difficult to prove without admission from the racists. These were in abundance
during the Civil Rights Movement, but proving public racism is often a fruitless endeavor
that can only be made by stringing certain comments together and viewing them in a certain
lens.
What speaks louder is the data, but even that has jeopardized getting to the truth of
this matter. In a hearing regarding proposals for a North Carolina photo voter ID bill, one
person testified voter ID laws have strengthened the states that have passed them and have
even seen greater turnouts in the African American community, with the number of AfricanAmericans voting in the presidential election going from 834,000 to 1.2 million from 2004 to
2008 respectively.96 The numbers come directly from the Georgia secretary of state’s office,
so this claim seems solid. However, the testimony, which came from an official at the rightwing Heritage Foundation, that voter ID laws caused some kind of jump in the African
American community leaves out a key fact: voter rates increased almost everywhere in the
2008 election. Furthermore, the African American community was extremely mobilized by
the presence of an African American on the Democratic ballot. The numbers do not allow
those who accuse states of orchestrating Jim Crow II, either. Blacks, demonstrably, are voting
more than ever. This doesn’t mean they are not being intimidated, but they are not being
killed on their way to the polls as was commonplace for the South.
The University of Delaware provides less politically charged data for those who have
openly called these proposals the second wave of Jim Crow. The data confirms the claim
made by Fund’s Stealing Elections: Republican voters, and not just politicians, widely
support the push for voter ID laws, and Democrats largely oppose it. It also confirms the
96
Christensen, Rob. “Supporters, opponents of voter ID law cite data to back up their position.” March 13,
2013. News Observer. Retrieved April 2, 2013. http://www.newsobserver.com/2013/03/13/2747822/supportersopponents-of-voter.html
34
normative claim that Republicans are more racist than other parts of the spectrum; the study
finds the Republicans and conservatives have the highest “racial resentment” scores as
devised by the study’s open ended questions. Eighty-five percent of respondents who scored
as “high resentment” against African Americans were highly supported the laws.
Interestingly, “Democrats and liberals with the highest ‘racial resentment’ express much
more support for voter ID laws than those with the least resentment.” Republicans across the
board support voter ID laws; whether they harbor high or low racial resentment is almost
irrelevant. However, if one identifies and a liberal or Democrat, that resentment makes them
likely to support voter ID laws.97
Another allegation of Jim Crow II is that the voter ID laws amount to a poll tax. As
has already been examined, any voting restriction that imposes unnecessary financial costs
onto the poor cannot withstand judicial review. Starting from HAVA and leading all the way
to Wisconsin, the stealth with which some states have tried to pass the strict ID laws has
rightfully given state and national politicians suspicions that deliberate disenfranchisement is
taking place. It is for this very reason that the system of checks and balances is in place, and
the judicial cases in Pennsylvania and Wisconsin were sped up, and the Georgian legislature
was forced to alter its ID law to offer free ID cards. Since that change, Georgia has paid for
over a million dollars’ worth of IDs.98
In the fact of this conflicting evidence, it is also helpful to remember the exception of
Rhode Island, which passed a voter ID bill in a Democratically-controlled legislature and
signed into law by a Democratic governor. Taken with this, the uptick in African American
voting in the South, and reliable data that racial resentment is not the driving issue, it is not
97
University of Delaware, College of Arts and Sciences. “National Survey Shows Support for Voter ID Laws
Strongest Among Those with Negative Attitudes Toward African Americans.” July 17, 2012. Retrieved April 2,
2013, http://www.udel.edu/cpc/research/idrace2012/Voter_ID_and_Race_2012/Voter_ID_and_Race.html
98
Christensen 2013.
35
safe to say that the voter ID push is Jim Crow II. Jim Crow laws were meant to demoralize
and keep the African American community oppressed in every sense: socially, politically,
economically, and so on. They highlight the United States at one of its worst moments, but an
opportunity to transition to a more perfect Union.
Such an opportunity presents itself during Barack Obama’s presidency. This fight to
suppress Democratic votes is unbecoming of a national party, and seeing the disparaging
effects it is having on the most unfortunate among us should give all those in the Republican
Party pause as it recovers from its losses in the 2012 election. Truly there are issues more
deserving of a state legislatures time than voter fraud. However, if a state wants to make
earnest strides in ID laws, they must be willing to pick up the tab for all of these IDs. The
Supreme Court’s decision to leave some citizens out of voting is troubling, and the states can
do better than the Crawford standard.
Plenty of well-intentioned citizens and politicians may not understand the degree to
which IDs restrict a sizable amount of the country. For example, a post by Charles Butler on
Project 21: National Leadership Network of Conservative African American presents the
misinformation that is prevalent in the polarized, 24/7 news cycle:
I've been voting since 1970, and I've always taken my driver's license with me to the
polling place to identify myself to the election judges. It seems like a common sense
thing whether it is required or not. I find it appalling and unconscionable, if the claim
is true, that 25 percent of voting age blacks lack valid government-issued photo ID.
It's not like they're hard to get. My 12-year-old daughter got one for airport security. It
would seem harder to avoid having proper identifying documentation than not these
36
days…If 25 percent of black Americans don't have valid ID, they obviously don't
want one.99
This kind of disconnect between the average American consumer and the very poor is the
crux of voter ID laws’ flaws that fuels Jim Crow II from being a reality, be it racial or
socioeconomic ignorance in place of animus. To have a driver’s license, one needs to know
how to drive. For a poor person or a student living in an inner city, one may not have the
financial means or time to find or borrow a car, take driving lessons, or get to their motor
vehicles department. Also, the twenty-five percent seems exaggerated, but with African
Americans being the most poor, and most of the poor working jobs that are unable to make
ends meet, it is hard to get down to the government center and pay for a license or
identification. For the elderly among them, they may not know where they were born, or how
to get a copy of their birth certificate and Social Security card.100
The states must significantly mitigate the costs of transportation, finding a birth
certificate, and so on. It would be unreasonable to expect a state to eliminate all costs
involved, but it is unacceptable to expect those with the least to do the most in order to vote.
Without comprehensive registration schemes where the state realizes the poor, college
students, and the elderly are not similarly situated to those who go to movies, buy alcohol,
and get identification documents for their young daughters. What is easy for middle America
is not easy for the least fortunate. This ignorance or refusal of the lopsided
disenfranchisement is poor policy and even worse politics, but it cannot be equated with
cases like Bond v. Floyd (1966), where the Georgian legislature was sued for refusing
African-American Civil Rights activist Julian Bond his seat simply because he was black. To
disenfranchise minorities for political gain is in opposition to the Constitution and
99
Butler, Charles. “Voter ID is No Jim Crow — I Know.” Project 21. Retrieved April 2, 2013
http://www.nationalcenter.org/P21NVButlerJimCrow90611.html
100
Wang 2012, 78.
37
emblematic of the Jim Crow attitudes from which the Voting Rights Act was created. The
rhetoric of Jim Crow II isn’t doing enough; the people need data and facts to expose whatever
animus remains in state and local governments.
We ID: The Future
The future of voter ID laws in uncertain at best. As the following examples will show,
the Obama Administration has used its Section 5 jurisdiction to approve some of these laws
vehemently opposed by the president’s party. The following states serve as a cross section of
the developments since Obama was elected, and how states plan to move forward with either
implementing the law or changing course.
At the beginning of 2013, Arkansas voters had a non-strict, non-photo ID law on the
books. This means that election officials could ask a voter for ID, and even if they did not
have it, they were permitted to vote.101 The state legislature approved a photo voter ID bill
S.B. 2 on party lines. This bill stated that the state government would pay for all the
associated ID costs. Democratic Governor Michael Beebe vetoed the measure. His veto was
overridden by simple majorities both chambers. The law, according to the tax of the bill, will
be enacted on January 1, 2014 or whenever the Arkansas secretary of state can fund the
issuance of photo appropriate IDs. Voters who don’t have an ID at the polls would then have
until noon on the following Monday to provide ID to county elections officials or sign an
affidavit stating they are “indigent” or have “a religious objection to being photographed.”
Failing to report to the county board would mean their ballot is thrown out.102 Alabama’s
similar law is awaiting preclearance from the DOJ.
101
“Senate panel weighs voter-ID bill.” February 14, 2013. Arkansas Online. Retrieved April 11, 2013.
http://www.arkansasonline.com/news/2013/feb/14/senate-panel-weighs-voter-id-bill/?f=latest
102
Full Text of the Bill is provided by the Arkansas General Assembly website:
http://www.arkleg.state.ar.us/assembly/2013/2013R/Bills/SB2.pdf
38
Missouri’s state legislature is currently considering a voter ID law that would be
among the strictest in the nation. A report of the effect the bill would have on Missouri voters
was detailed by the Democratic Secretary of State Jason Kander, and is summarized here. 103
The bill (HCS HBS 48 & 216), which has passed the Missouri House of Representatives and
is being considered by the Senate, would no longer accept out of state driver’s licenses, nondriver’s licenses, expired licenses, or student IDs even if they have a photo on them. Like
Arkansas, the identification cards are provided by the state for free, but will not pick up the
qualification costs such as a birth certificate. The Missouri Supreme Court found a similar
law passed by the legislature unconstitutional in 2006. If the bill is approved on party lines,
the Senate will approve it and the Democratic Governor Jay Nixon will likely veto it. Nixon
vetoed a voter ID bill in 2006. The Missouri Senate could easily muster the two-thirds
majority necessary to override a Nixon veto, but the House will have to have every
Republican and some Democrats to getting the 109 votes necessary.
Measures considered by Virginia and South Carolina over the past year were subject
to preclearance under the amended VRA. Virginia’s law passed narrowly through the General
Assembly with a party line vote in the lower chamber and a 20-20 vote in the state Senate,
broken by the Republican lieutenant governor. After some speculation, the term-limited
Governor Bob McDonnell signed the law that prohibited using utility bills or bank statements
as forms of identification and sets Virginia up to be strict photo ID state by July 2014. The
law provides free identification for those who do not have one. They received preclearance
from the DOJ this past summer, with the governor calling the new law “practical steps”
toward combating voter fraud.104 South Carolina was denied preclearance for their strict
103
The full text of Secretary Kander’s report is at http://big.assets.huffingtonpost.com/KanderReport.pdf
Contorno, Steve. “Justice Department OK's Virginia voter ID law.” August 21, 2012. Washington Examiner.
Retrieved April 14, 2013. http://washingtonexaminer.com/justice-department-oks-virginia-voter-idlaw/article/2505509
104
39
photo ID law in 2011 because as many as 81,000 would be ineligible to vote.105 South
Carolina decided to appeal the decision to the federal district court, as is permissible under
the VRA, and won the case. However, the bill would have to wait until January 1, 2013 to go
into effect, whereas it could have been applicable to the most recent federal and state
elections. Both states argued that the photo requirements assured the integrity of the election
process, despite the fact that the Virginia State Board of Elections questions the necessity and
associate costs and the DOJ found one alleged case of in person voter fraud in South
Carolina.
New Hampshire, one of the few Northern states with strict requirements, was brought
under the surveillance of the DOJ after a revaluation of the formula used by the VRA and the
fact that the Granite State still had a literacy test in effect at the time of the 1968 elections.
The DOJ granted preclearance to Senate Bill 289 after the Republican legislature overrode
Democratic Governor John Lynch’s veto. The New Hampshire bill came after an orchestrated
undercover scheme by the openly right-wing organization Project Veritas uncovered the
names of citizens who died but were still registered to vote in the highly anticipated January
2012 primary. These ‘investigators’ claimed they were a citizen, received a ballot, and
walked away without voting.106 No charges were filed against the members of Project
Veritas, as they accomplished their mission of the ease with which one can impersonate a
citizen. Incidentally, Project Veritas founder James O’Keefe was in talks with the South
105
Perez, Thomas. Letter to South Carolina Assistant Deputy Attorney General C. Havird Jones. Office of the
Assistant Attorney General, United States Department of Justice. December 23, 2011. Retrieved April 14, 2013.
http://www.documentcloud.org/documents/279907-doj-south-carolina-voting.html
106
Hayward, Mark. “AG probes voter fraud in NH after activists get ballots as dead people because they weren't
ID'ed.” January 11, 2012. New Hampshire Union Leader. Retrieved April 13, 2013.
http://www.unionleader.com/article/20120112/NEWS0605/701129979
40
Carolina Attorney General Alan Wilson when their voter ID law was in its inchoate stages;
the attorney general also attended a fundraiser for the organization.107
Pennsylvania State Rep. Mike Turzai’s comment about the voting laws allowing the
Keystone State to give its Electoral College votes for Mitt Romney proved to signal demise
for the law. In Applewhite et al v. Corbett, Commonwealth Court Judge Robert Simpson
enjoined the law, preventing poll workers from denying people a valid ballot in the most
recent November election. The judge reasoned that he was “not still convinced in my
predictive judgment that there will be no voter disenfranchisement arising out of the
Commonwealth’s implementation of a voter identification requirement for purposes of the
upcoming election.”108 The judge did not declare the voter ID law itself illegal, and the
injunction led to some confusion on Election Day with some poll workers asking for a photo
ID. This led some to believe they would be casting a provisional ballot or no ballot at all.109
The law continues to be enjoined and will not be enforced in the state’s primaries in May, as
it is pending a state court date of July 15, 2012.110 Thus, as of now, the state is classified as
having no voter ID laws by the National Conference of State Legislatures.
These are simply a few of the states that explain the range to which restrictions have
grown across the countries. Only twenty states remain with no voter ID laws whatsoever:
California, Oregon, Nevada, Wyoming, New Mexico, Nebraska, Iowa, Minnesota,
Wisconsin, Illinois, Mississippi, North Carolina, West Virginia, Maryland, Pennsylvania,
New York, New Jersey, Massachusetts, Vermont, and Maine. Neither the District of
107
“South Carolina Attorney General Holding Fundraising Event With James O’Keefe.” April 17, 2012. CBS
Charlotte. Retrieved April 13, 2013. http://charlotte.cbslocal.com/2012/04/17/south-carolina-attorney-generalholding-fundraising-event-with-james-okeefe/
108
Applewhite et al v. Corbett. 330 M.D. 2012. Retrieved April 14, 2013.
http://www.pacourts.us/assets/files/setting-647/file-545.pdf
109
Terkel, Amanda and Luke Johnson. “Pennsylvania Election Day Plagued By Confusion Over Blocked Voter
ID Law.” November 6, 2012. Huffington Post. Retrieved April 14, 2013.
http://www.huffingtonpost.com/2012/11/06/pennsylvania-voter-id_n_2083626.html
110
“Pa. Voter ID Law Won’t Be Enforced In May Primary.” February 14, 2013. CBS Philadelphia. Retrieved
April 17, 2013. http://philadelphia.cbslocal.com/2013/02/14/pa-voter-id-law-wont-be-enforced-in-may-primary/
41
Columbia nor any of the territories have voter ID laws. The future of these states is uncertain,
and depends heavily on the next few elections. New Hampshire’s legislature, for example, is
now split between the two parties with the Republicans holding a two-vote majority in the
Senate. Thus, a repeal of the strictest—and most expensive—parts of the law is awaiting a
vote from the upper chamber.111 New Hampshire has estimated it may cost hundreds of
thousands of dollars; North Carolina’s estimates their photo ID proposal at $3.6 million.112
The Supreme Court may also leave Section 5 alone in its June opinion. If this
happens, the status quo remains. But as evidenced by the preclearance granted by the district
courts and the DOJ, this may not stop strict voter ID laws from coming into effect. It is
unwise to say that the tide of voter ID fervor will end if the Roberts Court upholds Section 5,
yet it is also clear that laws like Texas’s ID requirements will leave the disenfranchised to
wade through the court system for a solution to disproportionate disenfranchisement.
It is clear that voter ID bills are almost entirely written by a fusion of conservative
activists in the non-profit or private sectors and the politicians on the state level. As voting is
regarded as a state function, there is no expectation of a national ban on photo IDs. In the
future, there could be a reconsideration of Crawford, if the Pennsylvania case is appealed and
accepted to the Supreme Court. There is likely to be a more liberal precedent set from the
conservative leaning Roberts Court if the Crawford parameters are reevaluated. Republican
state governments such as those in North Dakota are still proposing tighter restrictions from
no photo to non-strict photo to strict photo requirements, and few seem to reverse their
decision the way New Hampshire may. Therefore, moving into the future, there should be an
111
“NH House votes to repeal tougher voter photo ID requirements.” March 21, 2013. New Hampshire Union
Leader. Retrieved April 17, 2013. http://www.unionleader.com/article/20130321/NEWS06/130329746
112
Christensen, Rob. “Voter ID price tag put at $3.6 million.” April 18, 2013. North Carolina New Observer.
Retrieved April 18, 2013. http://projects.newsobserver.com/node/27381
42
expectation that Republican governments will not only create ID requirements but they will
make them as strict as possible, similar to Tennessee, Georgia, Indiana, and Kansas.
Conclusion
To say the political debate over ID laws will be fierce will be an understatement.
What is missing from the debate is a fundamental understanding of the disparities in the
United States between the middle-income families and their poorer counterparts. Voting is
not like a movie, or buying one’s favorite wine. However, the question that has dogged this
country since its inception is, how much should one expect the state to pay for those who
cannot pay for themselves? Furthermore, if no right is truly fundamental, to what extent can
the right to vote be abridged?
The tribulations of the Civil Rights Movement and the subsequent expansion of
suffrage rights to 18 year olds just a decade later are recorded as huge victories in voting
rights. Moving forward, however, the politically charged question of not suffrage but defense
of those rights which exist needs a common understanding of facts. What is easy is to assume
that the middle class serves as the microcosm of all parts of America; this is folly. What is
necessary is not to assume anything. What is necessary is to research with an objective eye
and then accept the fact for what they are. Voter ID laws are, with one exception, a statecentered Republican obsession; racial animus cannot be proven in the scope of this paper;
strict photo ID laws disproportionately hurt Democrats, the elderly, and minorities; the VRA
is a huge accomplishment in a country marred by state-sponsored discrimination and still
serves a purpose today, as preclearance denials are still issued in the South. The most difficult
task is to take a political problem and see it objectively, at the risk of avoiding all normative
statements. However, the new Republican Party needs a more sound justification than voter
fraud, which is too rare to warrant over $3 million in state spending. Also, Democrats need a
43
better defense than racism, ageism, or classism, especially when the facts are on their side.
The partisanship of this issue cannot be denied, but the misleading allegations on all side
must be actively admonished both by the media, the public, and the public servants
conducting these debates.
44
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