“A Matter Of Basic Values”: Burden Of Proof In The Battle Over Voting Rights
One of the most predictable characteristics of the battle over voting rights in this country, which now largely centers on Republican efforts in a number of states to institute various photo ID requirements, is a very different take on the burden of proof. Again and again, progressives point to the signal lack of evidence of any “voter fraud” problem anywhere. In Texas, the state that has filed suit to strike down the entire preclearance procedure of the Voting Rights Act of 1965 because the Justice Department refused to preclear its new photo ID law, there have been during the last two election cycles a grand total of four allegations made to the Attorney General’s office of people ineligible to vote impersonating qualified voters. As Think Progress’ Josh Israel notes, these are pretty damning statistics:
Though [Gov. Rick] Perry has claimed Texas has endured “multiple cases” of voter fraud, even of the paltry 20 election law violation allegations the state’s attorney general handled in the 2008 and 2010 elections, most related to mail-in ballot or campaign finance violations, electioneering too close to a polling place, and a voter blocked by an election worker.
It is unclear how many Texans attempt to illegally check out library books while impersonating neighbors or dead people, each year. But in a state of more than 25 million people, the odds of being even accused of voter impersonation in the Lone Star State are less than one in 6,250,000.
Conservatives typically ignore these numbers and instead of answering “why” new and burdensome voting requirements need to be instituted, ask “why not,” comparing proposed voting hurdles to the identification often demanded for various legal or commercial transactions, or more indirectly, asking why honest people would object to verification of their identities? Others rely on public opinion polls to “prove” the reasonableness of voter ID laws, a particularly shaky argument for conservatives who in other contexts believe unnecessary regulations and mandates are intolerable regardless of public support for their purposes.
Aside from the obvious fact that people in both parties understand these requirements would have a disproportionate impact on people more likely to vote Democratic, this kind of dispute often misses the rather obvious point that many conservatives do not view participation in elections as a fundamental right of citizenship. Occasionally they even admit it, but more often that conviction is simply reflected in how the question of “voter fraud versus voting rights” is framed. Anyone viewing the right to vote as fundamental is most unlikely to support burdens placed upon it without a compelling case to show the burden is necessary. “It wouldn’t hurt you” arguments or comparisons to other transactions that do not involve the exercise of fundamental rights are irrelevant.
No wonder a growing number of conservatives favor repeal of the Voting Rights Act altogether. The reasoning is closely parallel to the now-common-place argument on the Right that the discrimination against people of color is largely a thing of the past, and that exceptional government efforts to fight such discrimination amount to a racist effort to discriminate against white people. If that’s the case, then “why not” make access to the ballot just like any other public service, many of which are conditional on compliance with all sorts of rules?
So while the debate over voting in this country often sounds like a competition of people with competing views of the facts, it’s really not: it’s a matter of basic values, and of the burden of proof borne by those who support or oppose a right to vote.
By: Ed Kilgore, Contributing Writer, Washington Monthly Political Animal, March 26, 2012
“Denied The Right To Vote”: Texas Had ‘Fewer Than Five’ Voter Impersonation Cases Over Three Years
Earlier this month, the U.S. Department of Justice blocked a new Texas state law that would institute strict photo identification requirements for all citizens trying to vote. The DOJ refused to grant the law pre-clearance under the Voting Rights Act, noting that the bill would unfairly disenfranchise Hispanic voters.
Supporters of the bill say the law is needed to prevent voter impersonation. Gov. Rick Perry (R-TX) argued:
Texas has a responsibility to ensure elections are fair, beyond reproach and accurately reflect the will of voters. The DOJ has no valid reason for rejecting this important law, which requires nothing more extensive than the type of photo identification necessary to receive a library card or board an airplane. Their denial is yet another example of the Obama administration’s continuing and pervasive federal overreach.
How big has the problem been? According to the San Antonio Express-News:
Fewer than five “illegal voting” complaints involving voter impersonations were filed with the Texas Attorney General’s Office from the 2008 and 2010 general elections in which more than 13 million voters participated.
The Texas attorney general’s office did not give the outcome of the four illegal voting complaints that were filed. Only one remains pending, according to agency records.
And as ThinkProgress Justice previously reported, more people than that have been denied their right to vote due to these sorts of strict voter ID laws.
Though Perry has claimed Texas has endured “multiple cases” of voter fraud, even of the paltry 20 election law violation allegations the state’s attorney general handled in the 2008 and 2010 elections, most related to mail-in ballot or campaign finance violations, electioneering too close to a polling place, and a voter blocked by an election worker.
It is unclear how many Texans attempt to illegally check out library books while impersonating neighbors or dead people, each year. But in a state of more than 25 million people, the odds of being even accused of voter impersonation in the Lone Star State are less than one in 6,250,000.
By: Josh Israel, Think Progress, March 26, 2012
“Discriminatory Election Laws”: The GOP Assault On The Voting Rights Act
Last week the Department of Justice denied preclearance to Texas’s law requiring voters to present photo identification under Section 5 of the Voting Rights Act. Section 5 requires states and jurisdictions with a demonstrated history of passing discriminatory election laws to get approval from the DOJ for any change to laws governing the time, place or manner in which an election is conducted.
Within days Texas filed a challenge in federal court arguing that Section 5 is unconstitutional. Texas Attorney General Greg Abbott maintains that the federal government exceeded its authority and violated the Tenth Amendment when it passed the measure.
Conservative opponents of civil rights are eager to see that challenge succeed. Writing in National Review—which opposed the civil rights movement—vice chairman of the US Commission on Civil Rights and conservative scholar Abigail Thernstrom argues that Section 5 is outdated. National Review’s evolution on the subject is the standard conservative slither on civil rights. First you oppose it. Then, when society has evolved and you look like a bigot, you accept it. Then, as soon as humanly possible, you argue it was necessary at the time but no longer is.
“The Voting Rights Act was absolutely essential in ending the brutal regime of racial subjugation in the South, but it has become a period piece—anti-discrimination legislation passed at a time when southern blacks were kept from the polls by violence, intimidation, and fraudulent literacy tests,” writes Thernstrom. “Those disfranchising devices are as unlikely to return as segregated water fountains.” Thernstrom focuses most of her argument on the question of redistricting, and she argues that increasing residential integration and ethnic and socioeconomic diversity within minority communities makes the creation of majority-minority districts either unnecessary or impossible. “The notion of a ‘black community’ as the foundation of a black legislative district is also becoming an anachronism.”
There are two separate arguments being advanced by civil rights opponents: that Section 5 is unconstitutional because it falls outside the federal government’s enumerated powers, and that it is bad policy. Both are bogus. Section 5 is clearly constitutional, and we very much need it to protect the right to vote.
When Texas votes for seats in the House and Senate or the presidency, the results affect every American. Thus it is in the national interest to insure that elections are conducted fairly. “Not having discrimination in the electoral process is important to all of us,” says Hilary Shelton, director of the NAACP’s Washington Bureau.
Congress has the authority to regulate national elections, and it has the power under the Fourteenth and Fifteenth Amendments to the Constitution to protect the rights of African-Americans from state governments. “Congress has broad authority to regulate procedures for federal elections under Article I, Section IV of the Constitution,” notes Daniel Tokaji, an election law expert at Ohio State University. “Because Texas ID requirement would apply to federal elections, we don’t even need to get into the question of whether Section 5 falls within Congress’s Fourteenth and Fifteenth Amendment power.” While Tokaji agrees that imposing federal power over redistricting may raise some constitutional questions, the Texas complaint maintains that the federal government has no business telling states not to disenfranchise their citizens.
Moreover, contra Thernstrom, southern blacks are indeed being kept from the polls today. Case in point: the Texas voter ID law itself. Blacks and Latinos in Texas are disproportionately likely not to have driver’s licenses other forms of state-issued photo identification, as are poor people and the disabled. As the DOJ noted in making its decision, “According to [Texas’s] own data, a Hispanic registered voter is at least 46.5 percent, and potentially 120.0 percent, more likely than a non-Hispanic registered voter to lack this identification.” Texas did not collect data for African-Americans. But national studies have shown they too are less likely than whites to have the requisite ID. The DOJ has also recently denied preclearance to a similar law in South Carolina for the same reason. (South Carolina is also suing the DOJ, but they are not claiming that the law is unconstitutional, only that it is being incorrectly applied.)
This is not an isolated incident. Every time the VRA is renewed, Congress documents that it is still needed by examining allegations of vote suppression. “[Section 5] has stopped laws from going into effect that would restrict minority participation,” says Nancy Abudu, senior staff counsel at the American Civil Liberties Union. The most recent renewal was in 2006, when Republicans controlled both Houses of Congress and the White House, so it can hardly be characterized as a Democratic power grab. “[In 2006] Congress did a very good job of collecting the evidence of why Section 5 remains necessary,” says Abudu.
“The only places covered by Section 5 have a history of discrimination,” explains Shelton. “Every state under Section 5 was reviewed carefully for its record and complaints. [Opponents] are right: it is an extraordinary measure to take that is inconsistent with states’ rights. But these are states that have proven bad behavior. The law is protecting the participation of all eligible Americans.”
By: Ben Adler, The Nation, March 21, 2012
“Let My People Vote”: David Axelrod To Republicans On Election Engineering
Barack Obama’s former right-hand man accused Republicans of passing laws to shut out Democrats from voting in the next presidential election. “There’s no doubt that Republican legislatures and governors across this country have made an attempt to try to win the elections in 2012 and 2011 by passing laws that are restrictive, that are meant to discourage participation, particularly by key constituencies that have voted Democratic in the past,” said David Axelrod, former White House official and current senior advisor to the Obama campaign.
The comments were made in an online Q&A following the premiere of “The Road We Traveled,” a 17-minute film directed by David Guggenheim and produced by the Obama campaign. Questions were submitted over Twitter, and the topics ranged from how the president will handle Iran to whether Axelrod ever got in arguments with fellow senior advisor David Plouffe. The final question posed to Axelrod was about the string of laws Republican state legislatures have passed over the past year that will restrict access to the ballot in the name of combating voter fraud.
“The bottom line is we’re going to have to fight this in every state,” he said, “with every set of rules through organization, through commitment on the part of the campaign but also on individuals to find out exactly what the rules are in their state.” Axelrod and fellow Obama staffer Mitch Stewart then touted GottaRegister, a website started by the Democratic National Committee that helps voters register and navigate their local voting laws.
Seven states have passed strict voter ID laws since the 2010 midterm elections, though some of those have been held up after objections from the Department of Justice.
Immediately after taking power, newly elected Republican majorities in state legislatures rushed to combat voter fraud, a constant fear among the conservative base. But research has shown that these laws—and other restrictive voting measures such as repealing same-day registration or cutbacks on early voting—will make it incredibly difficult for certain groups of citizens to cast a ballot: senior citizens, racial minorities, the poor, and the young.
Republicans claim that it is just a coincidence that these groups targeted by the bill happen to vote consistently for Democrats. But Axelrod didn’t mince words about Republicans’ intentions. “We’re going to thwart this cynical attempt to depress voter turnout,” he said in the video. “The difference between our party and their party is we’d be comfortable if every single American who was qualified to vote did vote. We think that’d be a great thing for this country.”
By: Patrick Caldwell, The American Prospect, March 16, 2012
“A Foiled Power Grab”: Voter ID Laws Face Major Roadblocks
Texas Republicans have been trying for years to pass a law that would require state voters to show identification before hitting the polls—and state Democrats have been equally determined to stop such a measure. The Rs came close in 2009, but the House Democrats, only two seats away from a majority, blew up the legislative session rather than see the measure pass. By 2011, however, fresh from Tea Party victories, the GOP had overwhelming majorities in both Houses. The bill was almost undoubtedly going to pass, and rather than go for a more moderate version of voter ID with non-photo options, the conservatives went for the gold, introducing one of the most stringent versions of a voter ID requirement. The only option left for the Democrats was to set up the grounds for the legal battles sure to come.
Monday, it looks like those efforts paid off. The Department of Justice has blocked the law, meaning that while the measure goes to the United States District Court for the District of Columbia, the Lone Star State won’t be allowed to enforce the measure. Not every state must seek permission before changing election law, a process known as preclearance. The entire reason Texas must preclear changes to its election law stems from the state’s history of civil rights abuses. 50 years after the Voting Rights Act was passed, it seems the feds are right to keep their guard up.
Of the many problems the DOJ outlines in its letter to the state, one major point came up repeatedly during the legislative debate on the subject: the plight of rural voters. Democratic senators hit hard on the problem of access to state drivers’ license offices; in the letter, the DOJ notes 81 of the state’s 254 counties lack operational drivers’ license offices. The DOJ also notes that in rural areas the gap between Hispanics and non-Hispanics who have the necessary ID is “particularly stark in counties without driver’s license offices.” The senators were also vehement in discussing the hardships low-income voters would face both in terms of logistics and in terms of monetary costs. The DOJ finds that someone lacking the necessary documents to get an ID would have to start by obtaining a birth certificate—at minimum $22.
The question, not surprisingly, stems from whether Hispanic voters will be disproportionately affected by the new hurdles. The DOJ is fairly damning here, looking separately at two data sets provided by the state, one from September 2011 and one from January 2012. The state failed to explain discrepancies between the two sets of data, but more importantly, the two sets both show similar trends. Latino residents are significantly less likely to have the identification necessary for voting. Furthermore, the letter notes that the state has done almost nothing to educate voters about the coming change: “The state has indicated that it will implement a new educational program;” the letter reads, “but as of this date, our information indicates that the currently proposed plan will incorporate the new identification requirement into a general voter-education program.”
The state attorney general has already filed a preemptive lawsuit, so the next step is the D.C. Courts. But in the meantime, the law can’t go into effect—a legal win for the minority rights groups and Democrats fighting against the state. It’s not the only victory. As the DOJ issued its letter, a second judge in Wisconsin has blocked the state’s measure to require idenfication. Back in December, the Obama administration nixed a similar proposal from South Carolina.
To me, the partisan quality of the debate stains almost everything. Last week, I wrote about Connecticut’s efforts to increase voter turnout—a rare example in the midst of efforts to make voter more difficult. I’ll say now what I said then. These measures have obvious partisan consequences—and voter ID would help Republicans and hurt Democrats in political races. It’s obvious that concern for power is motivating many of the actors in the debate.
But voting is a holy act in democratic governments. It’s a powerful right, one people have struggled and died to exercise, and only relatively recently have minority communities had the necessary legal protections to get to the ballot box. The fact that the DOJ’s decision may benefit one political party is hardly worth mentioning when one considers that it also benefits basic rights of citizens.
By: Abby Rapoport, The American Prospect, March 12, 2012
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