One would think that in a nation where so many citizens do not vote — 75 million eligible people in 2008 — legislators would spare no efforts to increase exercise of the franchise. Indeed, much of post-Civil War history has witnessed the toppling of formal barriers to voting: African-Americans, women and later 18-year-olds gained the suffrage; poll taxes and literacy tests were pronounced illegal. Over time, affirmative steps have also been taken to enhance the ballot’s use and significance through measures ranging from declaration of the “one person, one vote” principle to passage of the “Motor Voter” law. But ominously, in recent years the tide has turned.
Despite the dearth of reported cases of ineligible persons attempting to vote, since the start of 2011 at least one-third of the states, accounting for more than three-quarters of the electoral college, have enacted statutes or undertaken executive initiatives designed to limit ballot access. Their purported justification is preventing voter fraud. These include stringent requirements governing voter identification, documentary proof of citizenship to register or vote, and voter registration drives. In addition, some jurisdictions have repealed same-day registration and eliminated or restricted early or mail-in absentee voting. Finally, governors in Florida and Iowa reversed earlier actions easing felony disenfranchisement rules, which constitutes the single most consequential hurdle to voting in the United States. See generally Wendy R. Weiser and Lawrence Norden, Brennan Center For Justice, Voting Law Changes in 2012 (2011).
It is no accident that Republicans have spearheaded and supported these changes, since they will have the greatest impact on poor, minority and college populations — groups that heavily supported President Obama’s 2008 candidacy. For example, in 2011, seven states enacted “voter ID” laws, which exclude many types of generally available documentation like Social Security and student cards. (The Brennan Center report notes that while Texas declines to recognize student IDs, it accepts concealed-weapons licenses for voting purposes.) The U.S. Department of Justice (DOJ) has found that in Texas Hispanic voters are much likelier than whites to lack a driver’s license or other form of permissible identification.
Moreover, although Crawford v. Texas, 533 U.S. 181 (2008), mandates provision of government photo identification free of charge, if needed for voting, would-be voters must often incur supplemental costs (including travel) for items such as birth certificates required to obtain the necessary documents. The people least able to afford these expenses will often be those who, without the paperwork, have to pay them.
Other measures disproportionately cutting back on the exercise of voting rights by minority and disadvantaged groups are expansions of felony disenfranchisement and onerous registration drive regulations. Thirteen percent of African-American men have lost the suffrage on account of convictions — seven times the national average. Registration outreach efforts mainly enlist “nontraditional” voters: blacks, Hispanics, low-income people and the young.
Florida, a key “swing” state that is up for grabs in November’s election, has become a poster child for retrogressive ballot initiatives — not only adoption of steep barriers to restoration of felons’ franchise but also substantial reduction of the early voting period (including, notably, elimination of the Sunday before Election Day, when many African-Americans go together to the polls after church) and restrictions on voter registration drives so burdensome as to cause the League of Women Voters to declare a moratorium on operations in Florida. However, the League did succeed in preliminarily enjoining some of these provisions as presumptively unconstitutional or barred by the National Voting Rights Act.
Not content with legislative and executive actions designed to narrow the potential electorate, Governor Rick Scott undertook to purge the rolls of ostensibly numerous noncitizens. This effort, which relied on admittedly outdated driver’s license information, rapidly turned into a fiasco. Thus far, a list of 2,600 voters sent to county election supervisors to investigate has yielded only 100 to 140 “hits” — a paltry 4 to 5 percent rate. Although a federal judge declined to stop this initiative at the DOJ’s behest, the state itself has decided to halt it until more reliable data is obtained. Meanwhile, collateral litigation continues: one suit mounted by the American Civil Liberties Union and other civil rights groups alleging violations of the National Voting Rights and National Voter Registration acts, and another brought by Florida endeavoring to gain access to a Department of Homeland Security database.
What could the states do if they wished to accomplish real electoral reform? Replacing antiquated paper-based registration systems with convenient, secure online alternatives would be a start; three jurisdictions have already done so. But in order to make substantial progress, they first have to cease marching backward.
Vivian Berger is professor emerita at Columbia Law School.