Poll Attacks

Keeping People from Voting is Real Scandal

By John Buell and Tom De Luca

The real scandal in American politics today is not voter fraud. It is the morally bankrupt Republican Party effort to keep citizens from the polls through so-called voter “reform.” Reminiscent of earlier efforts to disenfranchise poor whites, poor blacks, immigrants and urban residents, over 20 states have taken aim at preventing an abuse that rarely happens: voter impersonation. This “reform” will only serve to depress the already scandalously low voter turnout of the poor and marginalized, diminishing further their major political means of self-defense—the vote.

This has all been happening while the US media have been hanging on every twist and turn of the Clinton-Obama race. Despite all the talk of voter enthusiasm, far fewer than 50% of eligible voters will winnow the field of major party candidates to two. If we have a “record turnout” in November and exceed the 63% modern high reached in 1960, few will be told that, before the Progressive reforms, in the period from 1840-1900, turnout averaged 77.7%. Nor will we be reminded that unlike that earlier period today the poor vote at just above half the rate of the rich.

Just who could vote became a national concern after the 2000 Presidential election. In 2000, electoral officials in Florida improperly disenfranchised some voters falsely labeled “felons.” Yet after elections in which faulty election machinery and improper exclusion of voters was well documented, Florida’s Republican legislature responded by enacting voting reforms that addressed the one irregularity never alleged in the Florida elections of 2000 and 2004. In 2006, the Florida legislature required that potential voters present photo and signature ID at the polls, or else cast a provisional ballot subject to local approval after the election.

The close division between the parties has led to many attempts to make voter requirements more stringent. Already, 24 states have enacted laws requiring some form of identification at the polls, beyond the simple signature that has traditionally been required. Republicans have been virtually alone in promoting the laws, which have been opposed not only by Democrats but also by nonpartisan groups as well. They rightly argue that Republicans exaggerate the dangers and incidence of voter fraud and that the voter ID laws impermissibly burden the right of poor and minority citizens to vote.

The Indiana law requires a voter not merely sign his or her name for comparison with signatures on a voter registration list (the old standard) but also to show valid photographic identification before casting a ballot. When voters do not have identification, they may cast a provisional ballot. Nonetheless, their vote counts only if within the next 10 days they provide valid identification and sign an affidavit affirming they are the person who cast the provisional vote or sign an affidavit claiming indigence or a religious objection to having their photograph taken.

According to the Census Bureau and the Federal Highway Administration, about 11% of eligible Americans, some 21 million people, lack current government issued photo IDs, NPR has reported. Sometimes these are people who use public transport in cities, other times people too poor to own a car, or seniors who have stopped driving. The Indiana attorney general, Steve Carter, told the Supreme Court in oral argument on Jan. 9 that the law was well justified by “a swamp of inflated voter-registration lists and nationwide reports of in-person voter fraud.” Yet as the New York Times pointed out, “Carter did not claim that the problem of an ineligible voter impersonating an actual voter had occurred in Indiana.” Defenders of the Indiana law brush off this lack of evidence as a consequence of media indifference to the topic. But Republican officials in Indiana had every incentive to come up with examples and failed in this effort.

No one on either side denies that voter fraud in some form occurs. But numerous studies demonstrate that documented fraud is almost exclusively confined to absentee ballots. Republicans historically have done better in mobilizing absentee voters, and so the failure of this law to address this form of voter fraud raises serious concerns that the law is discriminatory in intent as well as effect. Many voter lists are outdated, with some voters being present on multiple lists. But rather than seek cross purges of such lists and other simple reforms, Republican legislatures have neglected this area.

If eliminating fraud is the sole objective, poll watchers from both parties can scrutinize signatures on Election Day, voter IDs can be issued when a voter registers and, most importantly, absentee ballot procedures can be tightened. If it were the sole objective. During oral argument, Justice John Paul Stevens was incredulous. The state’s “policy is to have it tougher to vote than to register?” he asked. “That doesn’t make sense to me.”

The path of this case through the courts has revealed a dismissive attitude toward the poor reminiscent of Marie Antoinette. Speaking for the majority of the Seventh Circuit Court of Appeals, the court whose decision was appealed to the Supreme Court, the influential conservative jurist Richard Posner fliply observed that hardly anyone today can get along without a photo ID. Furthermore, if they do not have one, “They can get a photo ID from the Indiana Motor Vehicle Bureau by presenting their birth certificate (or certificate of naturalization if they were born outside the United States) or a certified copy, plus a document that has their name and address on it, such as a utility bill.” The Court may, however unconsciously, be reflecting its own background and experiences. Not everyone owns a car, goes in and out of what to some are forbidding government buildings, or flies. The question is, where is the real fraud: in voter impersonation by those without photo IDs, or the intimidation and extra layers of bureaucracy Posner would allow to further dampen the protection voting affords the most marginalized?

Following their neoconservative leanings, Posner and his allies seem to believe everyone who wants to can get a job, a car, or even an ID, but this is exactly the kind of matter that needs to be more fully debated. The dimensions of US poverty are stunning. 15.4 million Americans live in extreme poverty. Their family’s cash income is less than half of the poverty line, or less than about $10,000 a year for a family of four. In the most recent year for which these figures are available, 12.6 million households, containing 35.5 million people, lacked access to adequate food at some point during the year because they didn’t have enough money for groceries. Do we really want to ask such families to spend money and time on a photo ID that is unrelated to the real problems of how to make democracy work better?

There is already some evidence of troublesome patterns resulting from these voter identification laws. Overall voter turnout in states with strict voter ID laws decreased by about 3%, and the decrease was two to three times that much for minorities.

Still, the Appeals Court dismissed any concern about burdens to poor potential voters with the observation that there are groups that have and can aid the poor in overcoming obstacles. This is clearly true, but these organizations do not possess unlimited resources. Money spent in helping an indigent person obtain a photo ID is not available for other efforts, such as get-out-the-vote or voter registration itself. Nor should it really be their job.

The United States already has the lowest rate of voter participation among major industrial democracies and the voter participation rate for the poor is even lower than the average. In Western Europe the difference in turnout between voters of high and low socioeconomic status is not nearly as severe as it is in the US.

The Appeals Court majority acknowledges that voter ID requirements will have more of an effect on the poor and also acknowledges that the poor vote in larger percentages for the Democratic Party. The Court excuses the exclusionary bias of the law on the grounds that the harm is minimal in comparison to the benefits enjoyed by the state. Yet in an earlier Supreme Court case, Carrington v. Rash (1965), the Court held that “fencing out from the franchise a sector of the population because of the way they may vote is constitutionally impermissible.” In this and related decisions, the Court elaborated criteria for “fencing out” that flow from Carrington and would have clear applicability to the Indiana law. The suspicion of fencing should arise “if 1) the voting restriction was enacted along partisan lines, 2) there is some evidence that the law will disproportionately inconvenience citizens who are statistically more likely to support the opposition party, 3) the law is a permanent measure rather than a time limited experiment with provisions for independent evaluation of its impacts on electoral participation by the disadvantaged classes.

These criteria apply perfectly to the Indiana law. Defenders of the Indiana law have argued that because its impact on the right to vote is relatively trivial, the state should be given a pass to address what it claims is the serious problem of voter impersonation. Yet in addition to understating the burden to potential voters imposed by the law and the number that may have already been affected, the law’s defenders fail to acknowledge other forms of harm this law may inflict. In Carrington the Court recognized that focusing exclusively on the “size” of the burden, on how many potential voters actually are prevented from voting, misses other forms of harm. What citizens believe about the integrity of the political process and about their own political worth matters. Laws that even attempt to prevent disfavored political factions from registering their political preferences harm public confidence in government and thereby render democracy less legitimate. Surely defenders of the 14th Amendment equal protection clause must subject to “exacting scrutiny” state claims that it faces an overwhelming fraud problem and that this step is the only way to address it.

The Appeals Court’s opinion in the Indiana Voter ID case also raises fundamental issues regarding the role of voting. Limiting the right to vote inflicts more harm than simply depriving the citizen of an immediate tangible benefit. Posner argues that individual votes seldom matter. He is wrong on that, but he makes a more fundamental mistake. Voting is more than just an opportunity to pursue such immediate rewards as the increased heating assistance. Voting and the participation entailed not only protect our interests but also shape us as persons. Voting gives us a broader sense of the way our needs connect to those of others and helps us become aware of shared values and concerns, thereby strengthening these values. No modern political system can long maintain itself if is held together only through coercion. Denied the opportunity to vote or made to feel that one must prove oneself before having such a “privilege,” disadvantaged citizens are hardly likely to feel well disposed toward those who shut them out or to the laws enacted by their leaders. And lacking the voice of the poor, the political system produces outcomes increasingly divorced from their needs. In the process the interest of the poor in politics may be further diminished. A vicious circle is set in motion.

Opponents of the Indiana law rightly highlight the ways that Southern states used the poll tax and literacy requirements to disenfranchise former slaves without thereby directly flouting the fourteenth amendment. But another late nineteenth and early twentieth century battle also teaches a cautionary tale about the ways claims of voter dishonesty can be manipulated. The Progressives, a political movement committed both to limiting the abuses of corporate power and to good government, wanted to fashion what they termed a virtuous citizenry. They supported personal registration laws eventually passed by almost every state. These laws required that people who wanted to register to vote had to show proper identification at a designated government office.

Personal registration laws were intended to disenfranchise citizens who showed no interest in voting until Election Day, when a party worker arrived with a few dollars and free ride to the polls. However, they also excluded many hardworking, responsible, poor people who wanted to vote but had failed to register because their work schedules made it impossible, or they were intimidated by the complex regulation. Rather than punish those who offered the bribes, government passed sweeping regulations with a disproportionate impact on a whole class of potential voters. Those most affected were immigrants, and the poor.

The history of voter ID laws should also occasion a broader look at our related notions of virtue and democracy. Some social conservatives argue that democracy cannot work without virtuous citizens. But virtue properly understood may require the right sort of democracy for its establishment and maintenance. Standards of right and wrong are necessary for civilized life, but those same standards can also reflect in part a distrust of those who are different merely because of perceived differences rather than because there is a tangible threat to an established way of life. Perhaps the best forms of virtue are those sensitive to the possibility that even broadly shared standards are not final, once and for all indices of human worthiness. Asserting final truths may amount to hiding from ourselves doubts we harbor about the real worthiness of the way of life we defend.

Virtue must itself be attentive to the current, growing diversity of life. In this regard, democracy has a further value: it both helps establish norms while providing the means and the ethos to challenge emerging problems in any norms it establishes. This kind of tension is healthy.

Democracy’s capacity to foster non-coercive social interaction and reflective engagement with the natural world can also unleash new problems and concerns. Human cultures develop and interact with a complex and perhaps never fully predictable organic and inorganic nature on which they depend. Groups can become aware that rights purported to be universal may not really be extended to them or that the established list of rights once deemed final are insufficient to emerging needs and concerns. Democracy’s emphasis on the individual’s right to participate sends a signal that humans are not pebbles to be pulverized into gains of sand for the sake of an orderliness which may itself be elusive.

Democracy at its best helps formulate and readjust agendas that allow diverse and diversifying populations to thrive together. Our lives today would be impoverished without the feminist and civil rights movements, and whatever one thinks of the contemporary right-to-die movement, it has surely encouraged a long overdue discussion of death in a world of advanced technology. Democracy’s gamble is that in a complex and evolving universe openness to the limits and exclusions of existing rights and agendas is both right and pragmatic. It’s a good gamble.

Unsurprisingly, the US Supreme Court has just affirmed Indiana’s draconian voter identification law. The Court’s majority shows the same disregard for the burdens imposed on poor and minority voters as did Justice Posner. This decision gives a green light to other states considering these exclusionary laws. If American democracy is once again to express and become receptive to the social democratic or radically democratic currents associated with Thoreau, Whitman, or William James, the initiative must pass to institutions that are at least potentially more democratic. In virtually every other advanced democracy, voting is valued so much that it is not up to the citizen to seek out a registrar while armed with a satisfactory ID. Instead, the government itself is required to find and register every eligible voter and, if necessary, to provide each voter with an official ID without charge.

Amending the Constitution to guarantee the vote is an important long-term goal. But Congress can do much to ensure that voter ID mischief does not spread and become entrenched. Article I, Section 4, declares that the states shall regulate elections, unless Congress steps in. Congress should pass a statute requiring all the states to register all eligible voters, and allow them to go to the polls, simply sign in, and vote. That law would end the real fraud we now live with: a system that discourages participation rather than giving robust democracy the real chance it deserves.

John Buell is a columnist for the Bangor Daily News. Tom De Luca teaches civil and political rights at Fordham University and runs a blog at (dailydemonizer.blogspot.com). Buell and DeLuca are authors of Liars! Cheaters! Evil Doers! Demonization and the End of Civil Discourse in American Politics (New York University Press).

From The Progressive Populist, June 1, 2008

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