Voting rights in the modern United States



Red-faced sheriffs’ deputies with intense scowls and growling, barking dogs. Angry white men with long guns and determined faces. Rows of marchers garbed in white robes with full face masks and glittering badges, chains and sashes of office. These are the images that come to mind when we picture the worst era of discrimination in the United States after emancipation. To election polling places we add the demand for taxes, fees and literacy tests before registration or voting are permitted. These are, no doubt, the most brutal and direct forms of discrimination aimed at preventing civil participation by racial minorities. As children we’re taught this history as a relic of a long-past era - a troubled period from which we emerged into a world of justice and equality, perhaps imperfect in small parts but largely unblemished by the violence and virulence of prejudice. Recent examples are treated not as symptoms of a crisis but as anachronisms that prove by contrast the enlightenment of modern democracy.


Yet these examples are not merely isolated incidents, remnants of a receding tide. Racism and racial discrimination, in both intent and effect, have simply transitioned from the broadly obvious violence of the past into subtle but pernicious strategies that, in election law, seek to achieve the de facto disenfranchisement of non-white voters. While black men are no longer counted as 3/5ths of a white man, and skin color can not be used to physically bar citizens from casting votes, the fifty years passed since the Civil Rights movement have witnessed an accelerating and emboldened effort to pass legislation that disperses and dilutes minority voting power. States throughout the South have drawn ‘gerrymandered’ Congressional and legislative districts to prevent black populations from electing their own representatives, the most time-honored and effective method for denying them political power. In the last decade and for the first time, many states have instituted ‘Voter ID’ laws that require voters to produce government-issued identification before registering or casting a vote. These laws, ostensibly intended to combat voter fraud, have been proven to disproportionately discourage voting among the young, the poor and the non-white electorate. Finally, early voting and absentee ballots - long-standing voting traditions in the United States - have been curtailed or eliminated entirely. Poor and minority voters, most likely to need flexibility and ease of voting to participate fully, are again disproportionately excluded by these legislative changes. The sum of these efforts, deployed broadly by conservative politicians, political consultants and right-wing activists, is a revived and energetic campaign of disenfranchisement and discrimination that poisons our political system with prejudice and poses one of the most serious civil rights threats of our time.
Savvy political observers awakened to the power of local election law in the denouement and aftermath of the 2004 presidential election. Katherine Harris, the Florida Republican serving as that state’s secretary of state, provided a stark demonstration of how nakedly political interference on the local level could serve the will of national political parties and movements. Reporting by Gregory Palast in Salon describes how, working with Jeb Bush several years before the election, Harris directed a contractor to develop a list of ineligible voters - citizens who lost the right to vote because of a felony conviction, de-naturalization or other effect of law. Working under a $4 million contract with specific guidance and parameters, the contractor (later known as ChoicePoint) generated a list that was provided to all polling places in Florida. Official investigations and Congressional testimony later revealed that up to 58,000 people were improperly struck from the voter lists, and that 80% or more of these were Democrats of African-American or Hispanic descent. ChoicePoint officials testified before Congress that the methodology used to develop the list matched names from voter rolls with names of felons, but permitted partial matches, reversed name matches, matches based on nicknames and other approximations as long as the races of the presumed ineligible voters matched those on the voter rolls (Palast). Harris was also instrumental in halting the recounts that many political operatives of both major parties believed could have delivered the deciding votes in the race to Democratic candidate Al Gore. The office of a state-level secretary of state had long been considered technical, non-partisan and mundane, but Harris demonstrated the power that could be wielded by an officeholder charged with managing the election process. John Nichols reports in The Nation that just one new super PAC, named "SOS for SoS", planned to spend $10 million in the November elections on competitive races for state secretaries of state - on behalf of conservative Republican candidates. Similar conservative PACs have been created to focus funding in specific state races for the position, demonstrating its new status as a high-profile partisan battleground (Nichols, screens 1-2). The power and role of secretaries of state have become crucial instruments for shaping the outcome of elections nationwide, and their influence is greatest over the technical and clerical rules for casting ballots.
Early voting has been the subject of intense interest from political parties and politicians. In the 2014 election cycle several states, including battleground states North Carolina and Ohio, have attempted to curtail early voting. The presidential election in 2012 saw increased turnout, and disproportionately minority and Democratic voting, through early balloting in dozens of states. The 2008 election saw 40 million ballots cast before election day, or roughly a third of all votes cast. In North Carolina, 7 out of 10 ballots cast by African American voters were cast during early voting, according to the Brennan Center at the New York University School of Law (Weiser & Opsal, screens 2-6). Twenty-three percent voted in the week of early voting cut by North Carolina for 2014.  Research from an Ohio voter advocacy group revealed that black voters had double the proportion of ballots in early voting compared to the general election, while researchers at Dartmouth and the University of Florida concluded that early voters were much more likely to be black or Hispanic and disproportionately younger and poorer than all voters combined, a demographic that skews Democratic. In reaction, eight states passed laws in 2013 restricting or eliminating early balloting. Governor Scott Walker of Wisconsin signed a law eliminating weekend early voting and reducing available hours during the week; Secretary of State Jon Husted and Governor John Kasich of Ohio cut polling hours, eliminated a traditional week of voting where voters could register and vote at the same time - triggering a lawsuit from the NAACP that went to the Supreme Court. According to reporting from Dan Froomkin of the Huffington post, State Senator Nina Turner, later an unsuccessful candidate for Ohio secretary of state, compared efforts there to the struggle over civil rights and remarked “Jim Crow has been resurrected. This is by design.” West Virginia, Florida and Tennessee also passed laws limiting early voting between 2008 and 2013 (Froomkin, screen 1).
Officials in Ohio and elsewhere argue that the reduction in early voting is intended to reduce costs, streamline election operations and give all voters equal opportunity to vote. In some states, early voting was a short-lived experiment: after disastrous polling experiences in the tightly fought 2004 federal election, the Ohio legislature and counties poured resources into improving polling procedures, expanding polling hours and adding early voting days. The result was a stunning increase in turnout, particularly among African American voters: 56% of early voters in the state’s largest county, Cuyahoga, were African-American - more than double their normal share of voting on election day. Despite claims that new regulations restricting voting opportunities are non-partisan and not intended to depress turnout, according to the Brennan Center at NYU 18 of the 22 states that have passed voting restrictions in recent years did so with political representation similar to that of Ohio: a Republican monopoly on the legislative and executive branches. Of the remaining states, Mississippi passed its law by voter referendum, and the others passed much less restrictive election laws. In the 11 states with the highest black voter turnout, 7 have new laws on the books impeding votes (Weiser & Opsal, screens 2-6). That the Republican party has a national strategy of making it harder for the poor and minorities to vote is unmistakable; GOP politicians throughout the country, including governors and secretaries of state, continue to promulgate laws and regulations to depress turnout and impair the right to vote among historically persecuted portions of the electorate.


The bicameral federal legislature is the result of a historic compromise between states with large populations and those with comparatively fewer residents. Members of the Senate represent entire states, regardless of the number of citizens in each state; representatives to Congress are elected by districts, each with roughly the same number of people throughout the entire country. To ensure equal representation, each district is slightly redrawn every 10 years after the conclusion of the national census. This process, called redistricting, allows state legislatures to redraw the electoral map. In contrast to most political processes in the United States, there is broad bipartisan agreement on the utility of redistricting: both parties push as hard as they can to use it to their advantage, creatively redrawing districts to spread their opponents as thinly as possible to ensure continued control over as many as possible. As a paper authored by fellows of the Brennan Center of NYU reveals, the 2010 redistricting cycle had a clear victor: the Brennan Center reports that the Republican party gained solid control over 11 more districts than after the 2000 cycle, dimming the chances of future Democratic resurgence in the House (Iyer & Gaskins, page 7).  Among the more extreme examples of partisan manipulation of the redistricting process in 2010 was the state of Texas, which prompted a lawsuit from the Justice Department after it used computerized data modeling to split Hispanic and African-American communities - and even to redistribute clusters of minority voters based on how often they voted. According to Lois Beckett and Suevon Lee of ProPublica, a federal court ruled that Texas GOP “mapdrawers consciously replaced many of the district's active Hispanic voters with low-turnout Hispanic voters in an effort to strengthen the voting power of [Congressional District] 23's Anglo citizens. In other words, they sought to reduce Hispanic voters' ability to elect without making it look like anything in [Congressional District] 23 had changed (Beckett & Lee, screens 3-5). The redistricting machinations were so extensive that even the district offices of three Democratic members of Congress were drawn out of their districts, along with businesses, hospitals and other economic engines. Texas, among the fastest growing states in the U.S., gained 4.3 million people between the 2000 and 2010 population counts. Of these, according to the Texas Tribune, 89% were non-white (Ramsey, Stiles, Aguilar & Murphy, screen 1-3). At the same time, the Republican Party gained unbeatable majorities in both houses of the Texas legislature, giving the party the apparently irresistible need and opportunity to redraw the districts as drastically to their advantage as possible to lock-in control over the Texas House delegation until at least 2020 (Fernandez, screens 3-4) (Beckett & Lee, screens 3-5).
Texas is not alone in the vigor of its partisan redistricting efforts. North Carolina, with a legislature controlled by Republicans for the first time in over a century, redrew the political map in a way that could help decide future presidential elections. President Obama won eight of thirteen districts in the 2008 elections, but the 2010 redistricting process concentrated his supporters to the extent that he would carry only three districts if the election used the new map. John Hood, president of the John Locke Foundation, bragged that the GOP could control up to 77 percent of the Congressional seats with barely more than half of all votes cast in the state. Eric Mansfield, a black Democratic state senator in North Carolina, found his compact and diverse district redrawn to stretch out over 350 miles of territory, with a shape reminiscent of a “fat squid” according to Ari Berman of The Nation (Berman, screen 2). Berman further reports that Professor Ted Arrington, a professor at the University of North Carolina-Charlotte, found Republicans “systematically moved [street] blocks in or out of their precincts on the basis of their race. No other explanation is possible given the statistical data.” In addition to pushing the state towards political resegregation, the changes to the political map substantially dilute the voting power of minority voters to the benefit of white voters and the Republican party - a result that is emblematic of the 2010 redistricting cycle nationwide, which the GOP has successfully dominated.


At first glance the requirement to present a drivers license or other identification to cast a vote may not seem onerous; it may even seem like common sense. At first impression, your typical white American voter may not regard the demand for ID as an element of voter suppression or a tactic to depress minority turnout. And indeed, legislators proposing and advocating for these laws - known as Voter ID laws - argue that they are necessary to prevent a specific form of vote fraud: voter impersonation. The scenario proponents of the laws envision is one where an individual uses legitimate names from the voter rolls to vote multiple times. Mark Obenshain, a Republican state senator from Virginia, argued to Frontline that “There’s only one class of people who are going to be discouraged from voting [because of voter ID laws], and that’s fraudulent voters.” Yet research from Arizona State University, among others, has shown that voter impersonation is an extremely unusual form of voter fraud (Childress, “Why Voter ID Laws Aren’t Really About Fraud”, screens 1-3). At the same time, voter ID laws are appearing in states that have historically enforced racist and discriminatory election laws, as determined by the Voting Rights Act and the United States Supreme Court. According to Frontline PBS, only one state among the six that have passed voter ID laws since 2010 did so before the Supreme Court struck down the preclearance requirement in the Voting Rights Act (Childress, “Why Voter ID Laws Aren’t Really About Fraud”, screens 2-3).


The preclearance requirement, a provision of the Voting Rights Act of 1965, is one of the special provisions of the act that apply only to certain states with the most serious history of discriminatory practices. Originally meant to last only 5 years, Congress has implicitly recognized that discrimination in these jurisdictions remains a threat by repeatedly reauthorizing the special provisions. After hearing evidence from experts in committee hearings who argued that racial discrimination is still a threat, Congress extended the requirements in 2006 for an additional 25 years. But in 2010 the Supreme Court heard a challenge to the provisions from Shelby County, Alabama. Ruling on the case, the Supreme Court invalidated Section 4 of the act - the portion of the act containing the formula that determined which states were covered by the special provisions. According to a history provided by Adam Liptak, the legal reporter for the New York Times, the nine states subject to the law were evaluated based on data describing practices from before 1975, which the Supreme Court ruled was unconstitutional. The ruling relieved those 9 states of the requirements; while the preclearance requirement itself was in Section 5 of the act, it could only be applied to states using the formula in Section 4 (Liptak, screens 1-3) (Henderson). Yet the means to re-apply the special provisions is available. Contrary to arguments by Shelby County in the Supreme Court, Frontline PBS reports that a review by the National Commision on Voting Rights found 171 successful lawsuits against discrimination and 113 denials by the Justice Department under the preclearance provision in the 18 years before it was overturned, with the majority of the lawsuits found in states covered by Section 4 (Childress, “Where is Voter Discrimination the Worst”, screens 1-2). Congress could use this information to alter the Section 4 formula and re-establish the force of the act, but it has not yet done so.
Judge Richard Posner, eminent jurist of the 7th Circuit Court of Appeals, wrote a dissent to a recent opinion upholding voter ID laws in that circuit in which he dismantled arguments in favor of the laws and concluded that “There is only one motivation for imposing burdens on voting that are ostensibly designed to discourage voter-impersonation fraud, if there is no actual danger of such fraud, and that is to discourage voting by persons likely to vote against the party responsible for imposing the burdens.” Posner, who wrote among the earliest opinions at the appellate level approving of the original voter ID laws, declared that he now believed the anxiety expressed over vote fraud was a “mere fig-leaf for efforts to disenfranchise voters…” (Friedman, screen 1-2) This conclusion rests on research that has determined that voter ID laws disproportionately affect poor and minority voters, who are more likely than others to lack the types of identification typically required by legislation. A recent investigation by the Government Accountability Office, a federal agency, uncovered that in states where voter ID laws had been enacted election turnout among young and minority voters decreased (Childress, “Why Voter ID Laws Aren’t Really About Fraud”, screens 1-3). Additionally, a column by Catherine Rampell in the Washington Post reported a study this year from Harvard Law School, which determined that the average total cost of obtaining a government-issued photo ID ranged from $75 to $175. She pointed out that the original poll tax invalidated by the Supreme Court in 1966 was the equivalent of just $11 in today’s dollars. The result is a potentially insurmountable barrier for the poor to complete the steps necessary to cast a ballot (Rampell, screen 1).


In response to lawsuits, Republican legislators have claimed that the voter ID laws are not motivated by partisan politics or by any intent to reduce turnout among minority voters. Yet a University of Southern California study conducted this year developed convincing evidence that bias against minority voters was pervasive among legislators who voted in favor of voter ID laws. The study sent emails with requests for assistance in voting to 1871 legislators in 14 states; half the messages were in Spanish, half in English, and among the messages in each language the name of the sender varied between an Anglo sounding name and an Hispanic name. Among legislators supporting voter ID laws, there was a vastly significant difference in response rates for messages sent from an Anglo name and those from an Hispanic name. A difference was observed among opponents to the laws as well, but the variance was far smaller. We can only conclude that the racial bias observed on the part of voter ID supporters extends to the legislation they write, which undermines a central plank of the Supreme Court case in 2007 that upheld voter ID laws: namely, that they were not passed with discriminatory intent (Ingraham).


Proponents of voter restrictions, including voter ID laws, reduced voting hours and early voting, culling voter rolls and redistricting maps reminiscent of Jackson Pollock paintings give various reasons in support. It is often argued that imposing a requirement for an ID is a simple, non-burdensome measure to ensure that those who vote do so only under their own, real names. Supporters remark that you need ID for many of lifes transactions, and it should not be challenging to produce ID for something as important as participating in an election. Many politicians argue that voter fraud is a threat to democracy and the legitimacy of both the election and the government, and that they have a legal duty to protect the integrity of the process. Voting hours are cut sometimes ostensibly to save money in times of tight budgets, or to reduce the burden on election workers, or to ensure that everyone has an equal chance to vote throughout a state (thereby reducing extended voting hours in dense jurisdictions with a history of long lines at the ballot box). These arguments are not dissimilar from those historically offered by defenders of poll taxes and literacy tests, who believed that literacy should be a requirement of civic participation in order to ensure an informed electorate, and that those who vote should contribute directly to the cost of holding an election. As we have seen above, each tactic adopted in an effort to protect the election has the effect of depressing turnout, discarding legitimate ballots, or directly reducing the representation of minorities. The evidence is clear that these are not incidental or accidental effects; they are the result of a coordinated national strategy among Republican political leaders, activists and donors including governors, attorneys general, secretaries of state and conservative advocacy organizations like the American Legislative Exchange Council (ALEC). Defenders of both historical and modern barriers to voter participation face a common argument, that the policies they support fail to substantively protect democracy while working to disenfranchise elements of the electorate that are already underrepresented.


The most overt forms of racial discrimination at the polls were banned by the Supreme Court in 1966 and further curtailed by federal legislation, including the Civil Rights Act of 1964 and the previously described Voting Rights Act. The passage of time has led many, including to some degree the Supreme Court, to conclude that racism no longer confronts minority voters attempting to exercise their right to vote. But academic research, journalistic analysis and litigation has proven otherwise: a national effort by conservative politicians and activists has used many methods in recent years to reduce and impede votes from minority voters assumed to support their liberal opponents. This effort aims to reduce the availability of the polls themselves by reducing ballot box hours and cutting early voting and absentee balloting, to directly exclude poor and minority voters by requiring forms of ID they disproportionately do not possess, and to finally reduce the power afforded to those who are able to vote by creating manic-seeming shaped districts manipulated to diffuse minority voters across districts dominated by more conservative electorates. The result is a national electoral system that is both intentionally and broadly biased against non-white voters. The constitution requires citizenship in order to vote, but it does not demand that it be proven at the time of vote - either by the presentation of a government-issued ID or any other means. It does not demand, or permit, impediments to the act of voting for any reason. It does require, emphatically, that all citizens by treated equally by the law and that the “right of citizens of the United States to vote shall not be denied or abridged by the United States or by any state on account of race, color, or previous condition of servitude.”


References


Beckett, Lois and Lee, Suevon. “Five Ways Courts Say Texas Discriminated Against Black and Latino Voters.”  ProPublica. ProPublica. Feb 22, 2013. Web. Nov 17 2014.
Berman, Ari. “How the GOP is Resegregating the South.” thenation.com The Nation. The Nation. January 31, 2012. Web. Nov 25, 2014.
Childress, Sarah. “Where is Voter Discrimination the Worst?” Frontline. WGBH Educational Foundation. Aug 6, 2014. Web. Nov 17 2014.
Childress, Sarah. “Why Voter ID Laws Aren’t Really about Fraud.” Frontline. WGBH Educational Foundation. Oct 20, 2014. Web. Nov 17 2014.
Fernandez, Manny. “2 Sides Cite Discrimination as Battle on Texas Voting Law Heads to Court.” New York Times. New York Times. Sept 1, 2014. Web. Nov 17 2014.
Friedman, Brad. “GOP voter ID law gets crushed: Why Judge Richard Posner’s new opinion is so amazing.” Salon. Salon. Oct 13, 2014.  Web. Nov 17 2014.
Froomkin, Dan. “Republican voter suppression campaign rolls back early voting.” Huffington Post. TheHuffingtonPost.com, Inc. August 18, 2012. Web. Nov 12 2014.
Henderson, Ana ed. “Voting Rights Act Reauthorization of 2006”. Brennan Center for Justice at New York University. Brennan Center for Justice at New York University.  2007.  Web. Nov 17 2014.
Ingraham, Christopher. “Study finds strong evidence for discriminatory intent behind voter ID laws.” Washington Post. The Washington Post. June 3, 2014. Web. Nov 17 2014.
Iyer, Sundeep and Gaskins, Keesha. “Redistricting and Congressional Control: First Look.” Brennan Center for Justice at New York University. Brennan Center for Justice at New York University. 2012. Web. Nov 17 2014.
Liptak, Adam. “Supreme Court Invalidates Key Part of Voting Rights Act.” New York Times. New York Times. June 25, 2013. Web. Nov 17 2014.
Nichols, John. “Why this fall’s elections for secretaries of state are so important.” The Nation. The Nation. August 13, 2014. Web. Nov 25, 2014.
Palast, Gregory. “Florida’s flawed ‘voter-cleansing’ program.” Salon. Salon. Dec 4, 2000. Web. Nov 10, 2014.
Rampell, Catherine. “Voter suppression laws are already deciding elections.” Washington Post. The Washington Post. Nov 10, 2014. Web. Nov 25, 2014.
Ramsey, Ross and Stiles, Matt and Aguilar, Julian and Murphy, Ryan. “Minorities Drove Texas Growth, Census Figures Show.” Texas Tribune. Texas Tribue. Feb 18, 2011. Web. Nov 17 2014.


Weiser, Wendy and Opsal, Eric. “The state of voting in 2014.” Brennan Center for Justice at New York University. Brennan Center for Justice at New York University. June 17, 2014. Web. Nov 10 2014.

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