US States Constrict Voting Rights In Advance of November Elections

Photo: Joe Shlabotnik

A nationwide discourse over numerous proposed and enacted changes to state voting laws has reached a new level of fervor in the United States. State legislative sessions in 2011 and 2012 have resulted in 180 different bills that restrict some aspect of state voting laws. Types of legislation introduced have varied from new demands for voter identification to tighter restrictions regarding voter registration periods and processes, as well as a shortening of time frames for casting early ballots ahead of election days. The majority of this activity has occurred in Southern and Midwest states, the bulk of which are controlled by Republican legislatures and governors whose ostensible premise is to increase protection against electoral fraud.

Citing the findings of New York University’s Brennan Center for Justice’s Voting Law Changes in 2012 report, Democrats have criticized the wave of legislation as deliberating placing restrictions on youth, minority, elderly and poor voters. The report argues that voting will become significantly more burdensome for five million eligible voters than it was in 2008 elections. The main source of debate has revolved around the questions over an increased burden on voters in the November elections, and whether it will contribute to a marked decrease in electoral fraud.

Speculation on an underlying rationale

The substantial increase in voter turnout in the 2008 presidential election can be attributed to demographic groups who have historically tended to vote for Democrats. The U.S. Bureau reported in July 2012 that African Americans showed a 2 million-vote increase over 2004 and had the highest turnout rate in the age group of 18 to 24-year-old voters. Hispanic and Asian voters contributed a respective 2.6 million votes to the 5 million additional voters in 2008. Popular consensus attributes President Obama’s victory over John McCain to this increased participation of youth and minority voters.


As with every election cycle, allegations of fraudulent activity surfaced, but in 2008 electoral fraud was not viewed as having been an issue which warranted detailed investigation. Consequently, the Democrats have asserted that the measures introduced are part of a Republican attempt at voter suppression. Demographics that had previously shown low voting turnouts – minorities and youth in particular – came out in force in 2008. This is suspected to have provoked a legislative rebuttal cloaked in claims of anti-electoral fraud.

Just as the changes to voting rights laws have been denounced by liberals as an act of voter suppression, conservatives have simultaneously championed them as anti-election fraud initiatives. In a December 2011 opinion piece, Republican National Committee Chairman, Reince Priebus, wrote that “election fraud is a real and persistent threat to our electoral system” and cited the deceased and double-voters as “two of the [Democratic National Committee’s] core constituencies. However, documented cases of voter fraud have been extremely rare, as several close examinations of recent elections have shown.

A 2006 brief by the Brennan Center pegged the electoral fraud rate at 0.00004% for results from the 2004 Ohio state election and questioned the usefulness of photo ID laws as “the only misconduct [they] address is the kind of voter fraud that happens as infrequently as death by lightning.”

The argument here is one based on rationality: fraud committed on the individual level, or that which would be prevented by heightened identification restrictions, is extremely rare, and as a felony crime punishable by fines of $10,000 and up to five years in prison, the risks hardly appear worthwhile for the casting of a single additional vote. A national turnout of 62% in the 2008 presidential election did not signify an increase over the 2004 election despite intensified efforts for voter registration and participation. Thus, the fragmentary participation rates of American electoral system is likely to be put at a greater risk due to attempts to prevent the illegitimate participation of a minute few.


Judicial challenges

The ongoing trial in the U.S. Supreme Court, State of Texas v. Holder, over a 2011 Texas law that requires voters to present valid photo I.D. demonstrates the continuation of a struggle between the state and federal governments across the Unites States. The law, signed into being in May 2011 by Governor Rick Perry, was overturned in March by the Federal Department of Justice by way of the Voting Rights Act, a piece of legislation designed to protect the rights of minority voters.

U.S. Attorney General, Eric Holder, is acting as the Federal Government’s legal representative in the case. His case emphasizes the law’s disproportionate impact on African Americans. Across the country, 25% of African Americans lack the required photo identification, compared to 8% of caucasian voters. According to a study by Harvard professor, Stephen Ansolabehere, this would prevent approximately two million voters in Texas from participating in the November elections.

The results of the Texas vs. Holder case could create a precedent for an upcoming preclearance review in the state of South Carolina, which has sued the Department of Justice, as well several other similar reviews in Alabama, Mississippi, and New Hampshire. Should the law be ruled unconstitutional, changes to voting rights laws across the country are likely to be scrutinized even if they do not directly concern appropriate photo identification. Independent of the final ruling, the case will make a definitive statement about the Federal Government’s role in the protection of voting rights and the credibility of the Voting Rights Act.

Implications for November

As the 2012 elections near, new evidence supporting critics’ claims of discriminatory disenfranchisement has emerged. This March, the Pennsylvania State passed a law requiring photo identification to vote. Estimates from the Associated Press predict 750,000 eligible voters do not have such an I.D. Concern over the Democratic stronghold of Philadelphia has been recently compounded by Pennsylvania House Majority Leader Mike Turzai’s comments to the Republican State Committee that the law “is going to allow Governor Romney to win the state of Pennsylvania.” It is assumed that Turzai was referencing the vote differential Republican candidate Mitt Romney would make up via the exclusion of voters who would have supported President Obama. However, this comment was followed up by a statement by Turzai’s spokesman, Stephen Miskin, who qualified his remarks by stating that “the Republican Presidential candidate will be on a more even keel thanks to Voter I.D.”

While the argument that a reduction in voter fraud during the 2012 election could affect the final outcome is somewhat weak, the impact of the new voting laws may prove to be more substantial. Because states are not required to notify voters of changes made to voting laws, those voters who lack the necessary photo I.D.may not even hear about the changes until election day.

While it is difficult to accurately speculate as to the ultimate consequences of the series of laws passed in 2011 and 2012, the rapid series of restrictions considered and implemented by the states will undoubtedly influence voter turnout rates for this election.

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