IV. The New Landscape in Voting Rights Suppression: Redefining Voter Id Laws and its Challenges
Private efforts to police the polls create a real risk of vote suppression, regardless of their
In keeping with the theme and accoutrements of citizenship, one must look at voting as a mechanism to advance a citizen's place in society. Although in many cases, voting is used by the majority to prevent the minority from exercising the rights of full citizenship. Along with jury participation, voting is limited only to United States citizens. Since Reconstruction, there has been a concerted and pervasive effort to block and to prevent minority citizenry from exercising their rights of citizenship in the voting booth. Recent efforts to prevent citizens from voting must be looked at through the prism of the long history of the United States in its attempts to preclude and disqualify minorities, particularly African Americans from voting, and thus, to dilute the African American's electorate and, in effect, to make African Americans second tier citizens in their own country. Without the vote, African Americans cannot participate in exercising their full citizenry or effect change to ensure their own prosperity.
In examining the old landscape of voting, southern states universally felt a compelling interest to protect their citizens against “unqualified” African American voters. The proposed Fifteenth Amendment drew controversial debate by Congress of black inferiority as to the right to vote. Indiana Senator Thomas Henricks stated that newly freed slaves could not add to the political process. Senator Willard Saulsbury, from Delaware, excluded African Americans from voting as a wish from God. During this period, the most used obstruction tool was the literacy test. Registrars would ask African Americans questions that were impossible to answer and were used solely to exclude. For example, Blacks would be asked, “How many bubbles in a bar of or “How many windows are in the White
Historically, state officials invented race neutral voting standards with pretextual questions to eliminate African Americans from registering to vote. African Americans were subject to poll tax payments in advance and aforementioned absurd literacy tests as mechanisms for discrimination. The insidious discrimination was perpetuated by registrars and state officials determined not to allow African Americans the right to participate in the voting process. In 1882, the mailbox system was adopted in South Carolina, requesting voters to use different boxes for different ballots. A voting reform method of secret ballots continued to frustrate uneducated individuals and systematically disenfranchised the African American vote. Voting requirements of poll taxes, grandfather clauses, and literacy tests, all under an umbrella of color-blind voting regulations, were in actuality officials' selective procedures to discriminate.
Grandfather Clause laws allowed illiterate whites to continue to vote, while African Americans were foreclosed from voting. In Guinn v. United States, the court held that “grandfather clauses” violated the Fifteenth Amendment. The Supreme Court deemed this a corrective means for disenfranchised African Americans, whose ancestors were slaves until 1863.
By 1957, Attorney General Brownell released shocking information that the registrar in Camden County, North Carolina, administered a different literacy test for black and white applicants. The registrar in Greene County, North Carolina, demanded that the African American applicants answer a series of questions, including, but not limited to, whether they were members of the NAACP and if that organization “attacked” the United States, would the black applicant participate. The white applicants were not required to answer such questions.
Under the 1965 Voting Rights Act, African Americans were given the full opportunity to exercise their full citizenship rights. This hallmark Act is considered the most successful Civil Rights legislation in history for African Americans. Over the past century, the United States Congress, through the Voting Rights Act, expanded the right to vote and knocked down innumerable barriers to full electoral participation. Since 2000, with tricks and intimidation tactics and, since 2010, with the first voter ID laws, that momentum to allow all citizens the unencumbered right to vote abruptly shifted. African Americans, after many years of exercising their right to vote, are now facing challenges in the voting process that are affecting their participation in the electorate system. Challenges to the African American vote include intimidation, trickery, and voter identification laws.
Recent attacks on African American voting rights began during the 2000 presidential election. The U.S. Commission on Civil Rights issued a report on discriminatory practices against African Americans on Election Day in Florida and found that thousands were denied the right to vote. The report pointed out that African Americans were ten times as likely to have their ballots rejected than nonAfrican Americans. The report stated that about 14.4 percent of black voters' ballots were rejected compared to 1.6 percent of non-black voters. The report's data further stated, that African Americans made up eleven percent of all Florida voters, but fifty-four percent of the spoiled ballots, some 187,000, were of black voters. The data further indicated that eighty-three out of 100 precincts with spoiled ballots were from majority black precincts. These spoiled ballots were rejected and the votes were not counted.
In addition to claiming that African American ballots were spoiled, detractors have also used intimidation and tricks to rule the voting process. In Milwaukee, in November 2004, fliers were distributed in black neighborhoods under the false name of “Milwaukee Black Voters League.” The fliers inaccurately pronounced that “anyone convicted of any offense, however minor, is ineligible to vote;”“if any family member has any conviction, it also disqualifies other family members from voting;”and that “it's too late for unregistered voters to The flier further stated, “if these rules are violated, you are facing a conviction of ten years in prison and your children will be taken away from Also, in Milwaukee, in October 2010, a billboard showed people in jail and behind bars referencing “We voted Illegally.”
The billboard intimidation tactics are back for the 2012 election. Billboards that point out the penalties for voter fraud are appearing in predominantly African American communities in Ohio and Wisconsin, despite no evidence that voter fraud exists. Thirty-three signs have cropped up in Milwaukee and Cleveland in predominately poor and African American sections of the state warning of the penalty for voting fraud. Legal activists and community members say that the signs deliberately target and seek to intimidate Blacks and Hispanics, other minorities and the poor. “The billboards create a chilling effect,” said Marcia Johnson-Blanco, a co-director at the Lawyers' Committee for Civil Rights.
During the 2004 elections in Allegheny County, Pennsylvania, fake fliers were distributed on official-looking paper telling Republicans to vote on Tuesday, November 2, 2004, and Democrats the next day. In Ohio, a memo also distributed on official looking Board of Election stationary, told voters they could not vote if registered by a NAACP voter drive. A fake letter purporting to come from the NAACP instructed voters in Charleston, South Carolina that they would be arrested if they voted with past due child support payments and unpaid parking tickets. A candidate for office in Orange County, California sent fliers in Spanish to the Latino community prior to the November 2006 election stating: “You are advised that if your residence in this country is illegal or you are an immigrant, voting in a federal election is a crime that could result in jail In response to the flier, California's Secretary of State, Bruce McPherson, mailed letters to the Latino community informing them that all U.S. citizens have a right to vote and stated that “voter intimidation in any form is completely A federal judge in East Texas issued an order during the November 2006 elections stopping the Attorney General and Texas election officials from prosecuting people of color for helping the elderly, the disabled and other minorities cast their vote. The Lone Star Project called this behavior “a voter suppression scheme” designed to impart fear and intimidation. During the November 2006 elections, Latinos in Virginia and Colorado were told that their ancestry would make them ineligible to vote. In 1988, Republican Assembly candidate Curt Pringle settled a civil rights suit for voter intimidations. Pringle posted “security guards” at predominately Latino voting stations in Orange County, California to prevent non-citizens from casting ballots. In 2006, Republicans in New York challenged late registered voters by using a check challenge of sending police officers out to check listed addresses.
Now, Republican lawmakers and Tea Party organizers are trying to expand their political muscle by making it harder for minorities, the poor, and the elderly to exercise their right to vote in the 2012 presidential election. These present voting obstruction tactics and oppressive voter ID laws are designed to reduce any chances for Democrats to remain in the White House. Republicans argue that voter ID laws correct and prevent voting irregularities. Tea Party members are now planning to question voters at the polls as to their eligibility to vote. In October of 2010, Tea Party organizers announced a $500.00 bounty would be paid to anyone who turns in a person who is prosecuted for voter fraud. A surveillance squad has also been established by the Tea Party to tape and photograph persons engaging in what they perceive to be suspicious voting irregularities. In some cases, they will follow buses that take voters to the polls. In response, liberal groups and voting-rights advocates are sounding an alarm and claiming that such strategies are scare tactics intended to suppress minority and poor voters.
These political groups have created an atmosphere of fear and intimidation in low-income and minority communities through tricks and scare tactics designed solely to suppress voting. Their tactics have gained traction even after being universally repudiated by the legal academy. In 2001, the Association of Community Organization for Reform was instrumental in helping register about 1.3 million lowincome and people of color to vote. Due to conservative attacks on its methods, the organization closed in 2010. Presently, organizations like the League of Women Voters and Houston Votes (a voter registration organization in Latino communities) have faced an incredible battle to register voters in light of the new oppressive voter ID laws.
Because of these intimidation tactics, voter registration is down in many states. In 2010 in Wisconsin, voter registration declined forty-three percent since 2006. In Florida, voter registration declined twenty-seven percent; in Ohio, voter registration was down twenty-five percent; in North Carolina registration declined twenty-eight percent, and in Maryland, voter registration declined twenty-one percent.
In thirty-four states, largely Republican legislation has been introduced requiring a photo ID to vote. Republican legislatures are increasingly imposing strict ID requirements for voters, ostensibly to deter in-person voter fraud. But voter fraud in general is rare and the type the legislation targets is ““virtually non-existent” according to an extensive public-records search conducted by News21. News21 election fraud database turned up ten cases of voter impersonation. With 146 million registered voters in the United States during that time, those ten cases represent one out of about every fifteen million prospective voters. “Voter fraud at the polls is an insignificant aspect of American elections,” said elections expert David Schultz, professor of public policy at Hamline University School of Business in St. Paul, Minnesota. Yet, despite no evidence of voter fraud, Republicans are still pushing for voter ID laws. The only explanation for this is voter suppression. For example, in Pennsylvania, House Majority Leader Mike Turzai suggested that the House's end game in passing the voter ID law was to benefit the GOP politically, saying that the passing of the voter ID law was designed to allow Governor Romney to win the state of Pennsylvania.
One voter ID law, in Indiana, was upheld by the United States Supreme Court in 2008 on the grounds that as the process of getting an identification card was not burdensome. The Supreme Court found it compelling that Indiana's voter ID cards are free and that “the inconvenience of making a trip to the DMV, gathering the required documents, and posing for a photograph surely does not qualify as a substantial burden on the right to vote, or even represent a significant increase over the usual burdens of In addition, Indiana allowed those without a photo identification to cast a provisional ballot that would be counted if they executed an affidavit.
An example of the burden of one state's voter ID requirement is Wisconsin's voter ID law, which was struck down at the trial court level. The opinion in that case spelled out a compelling argument why Wisconsin's voter ID law is unconstitutional. The judge stated that the voter ID law created a new class of citizens that is barred from voting, specifically, those without the right form of state-mandated photo ID.
The judge also found that the law's restriction would fall disproportionately on those with the fewest resources to obtain an ID. The judge first examined Article III, Section 1 of the Wisconsin Constitution, which specifies who may vote in Wisconsin: “Every United States citizen age 18 or older who is a resident of an election district in this state is a qualified elector of that The judge further stated, “[t]he government may not disqualify an elector who possesses those qualifications on the grounds that the voter does not satisfy additional statutorily-created qualifications not contained in Article III, such as a photo and “[b]y enacting Act 23's photo ID requirements as a precondition to voting, the legislature and governor have exceeded their constitutional
Act 23 in Wisconsin went “beyond mere regulation of elections. Its photo ID requirements impermissibly eliminate[d] the right of suffrage altogether for certain constitutionally qualified Thus, the judge found that Act 23's photo ID requirements were unconstitutional because they abridge the right to vote. Evidence showed that “many constitutionally qualified electors from all walks of life will be blocked from voting at the polls by Act 23, involuntarily and occasionally through no fault of their causing an insurmountable burden to constitutionally-qualified electors.
Without question, where it exists, voter fraud corrupts elections and undermines our form of government. The legislature and governor may certainly take aggressive action to prevent its occurrence. But voter fraud is no more poisonous to our democracy than voter suppression. Indeed, they are two heads on the same monster.
A government that undermines the very foundation of its existence--the people's inherent, pre-constitutional right to vote--imperils its legitimacy as a government by the people, for the people, and especially of the people. It sows the seeds for its own demise as a democratic institution.
Over twenty-one million citizens do not have a government-issued ID in the United States. These restrictive laws will disproportionately affect the poor, minority, elderly and Blacks. For example, the Brennan study indicated that twenty-five percent of African Americans do not have the required government-issued ID. At the same time, in Texas, a voter ID law allows a person to produce a concealed hand gun license as proof of identify but will not allow a state university ID for proof of identity. Moreover, ninety-two percent of all concealed handgun owners are non-African American. Twelve states in 2011 have introduced proof of citizenship laws and bills to eliminate early voting, same-day voter registration, voting registration drives and Sunday voting. These laws inhibit the efforts of many African American churches that organize “souls to the polls” drives, which allow their members to collectively go to the polls after Sunday services to vote.
In battleground states for the 2012 election, Republican legislators have redefined citizenship and legal status to cast a vote. Government-issued ID requirements, the reductions in early voting and the imposition of new restrictions on voter registration drives, threatens citizens' exercise of their full citizenship rights to participate in the political process by these new laws. In addition, the birther movement challenging President Obama's citizenship status, as well as bills and laws addressing birthright citizenship for illegal immigrant children born in the United States, indicate a clear movement toward second-tier citizenship. Analysis by the Brennan Center shows that these new laws could affect 5 million eligible voters nationwide.
One must be a United States citizen in order to vote in America. Normally, one must also be at least eighteen years old and swear by affidavit that he or she is a United States citizen and meets all voting requirements. However, states are now requiring citizens to produce documents proving citizenship status. These laws are a direct outgrowth of the Arizona legislation's attack on Mexican immigrants and the false perception that immigrants were voting illegally. The Arizona bill, which was called Proposition 200 and went into effect in 2006, authorized officials to reject a voter's registration that was not accompanied by an application with citizenship documentation.
These proof of citizenship laws have arisen based on the growing immigrant population in states like Alabama, Georgia and South Carolina. Again, the same recycled argument is used, that it will prevent non-citizens from registering to vote and will combat voter fraud. However, these laws will exclude a large portion of eligible voters who do not have ready access to citizenship documents.
With the resurrection of these old challenges to citizenship rights for African Americans, there is a growing concern of voter disillusionment. A 2006 Pew Research Center Report found African Americans were twice as likely to have no confidence in the voting process as from previous elections. Another study in 2004 found that African Americans felt less confident than white voters that their votes were accurately counted.
With voter ID laws and other voting suppression tactics, the opportunities given by the Voting Rights Act may be in danger for the first time since its passage. The right to vote will always be an important conduit for economic property for all people of color.