Restrictive Voting Laws: Making it Harder for Some to Vote

Eeeeek! A Fraud. (RJ Matson, Roll Call, April 16, 2007)

By Ralph E. Stone

September 8, 2012

In the 2008 presidential election, approximately 5 million more Americans voted than in 2004. And the voters were the most racially diverse in American history, with African-Americans, Latino, and Asian-American citizens voting in record number. Since the 2008 election, however, more than 30 states have introduced laws that make it harder to vote, ostensibly to curb voter fraud. According to the Brennan Center for Justice, these restrictive laws could disenfranchise more than 5 million Americans, and could effect the presidential election in key states.

At least ten states have introduced voter ID laws. Approximately 1 in 10 Americans do not have a photo ID. In Crawford V. Marion County Election Board, 553 U.S. 181 (2008), the U.S. Supreme Court held that an Indiana law requiring voters to provide photo IDs did not violate the U.S. Constitution, finding it closely related to Indiana’s legitimate state interest in preventing voter fraud, modernizing elections, and safeguarding voter confidence. The Indiana law in question required all voters casting a ballot in person to present a U.S. or Indiana photo ID. Under the Indiana law, voters who do not have a photo ID may cast a provisional ballot. To have their votes counted, they must visit a designated government office within 10 days and bring a photo ID or sign a statement saying they cannot afford one. But in their ruling on behalf of states’ ability to regulate elections, the high court also noted that state “judgment must prevail unless it imposes a severe and unjustified overall burden upon the right to vote, or is intended to disadvantage a particular class.”

In another case, a three-judge panel in Washington, D.C. struck down a Texas ID law. In the same court, a similar South Carolina ID law is before a three-judge panel. The panel cited a $22 fee for a state ID, which they ruled imposed “strict, unforgiving burdens on the poor.” The difference between the Indiana case and these two cases may be that the Texas and South Carolina laws are much stricter than Indiana’s. It is expected that the Texas and South Carolina cases will end up in the Supreme Court.

In Pennsylvania, a lower state court ruled that a voter ID law should apply in the November election. The case is on appeal to the Pennsylvania Supreme Court.

In Ohio, a key state in the presidential election, a court struck down a new law that allowed only military personnel to vote the weekend before the November election, which the court said discriminated against the poor and minorities, who historically have taken advantage of the early weekend voting to cast their ballots.

Seven states require proof of citizenship at the polls.

Thirty-two states have introduced bills to reduce early or absentee voting. In 2008, 30 percent of all ballots were cast before election day.

Thirty-two states, including California, restrict voter registration drives. Onerous regulation of voter registration activities can significantly limit or even halt community-based voter registration drives, blocking the citizens who rely on these drives from getting on the voter rolls. For example, until June 2012, national groups like the League of Women Voters and Rock the Vote had discontinued voter registration activity in Florida due to that state’s excessive regulations, particularly unreasonable fines and deadlines. On May 31, a federal judge blocked some of Florida’s voter registration restrictions.

In Texas, both Voting for America, an affiliate of Project Vote, and Project Vote filed suit against the state of Texas to challenge its election code that similarly impedes community-based voter registration drives. The group sought a preliminary injunction to block portions of the law that have a chilling effect on voter registration activity, in violation of the National Voter Registration Act and the U.S. Constitution. On August 2, a federal judge agreed and granted a partial preliminary injunction, effectively blocking some of the state’s most prohibitive rules until a final ruling can be reached.

These restrictive laws are supposed to curb fraud. “Voter fraud” occurs when individuals cast ballots despite knowing that they are ineligible to vote, in an attempt to defraud the election system. After an investigation by the Justice Department between 2002 and 2007, not one person was prosecuted for impersonating an eligible voter at the polls. And out of the 300 million votes cast in that period, federal prosecutors convicted only 86 people for voter fraud – and many of the cases involved immigrants and former felons who were simply unaware of their ineligibility. As the Brennan Center notes, “The truth of the matter is that voter fraud—votes knowingly cast by ineligible individuals—is exceedingly rare; one is more likely to be struck by lightning than to commit voter fraud.”

The Fifteenth Amendment to the U.S. Constitution prevents any state from denying the right to vote to any male citizen on account of his race. Voter restriction laws borrow from pre-civil rights-era voting and election laws designed to restrict the rights of African-Americans to vote. In addition to violence and intimidation, many Southern states used poll taxes to prevent Blacks from exercising their civil and voting rights from 1868 through the mid-1870s. A poll tax, which many Blacks could not afford, had to be paid in order to vote. The requirement to purchase a state identification card or other form of acceptable identification acts as a poll tax and discourages the poor from voting.

The Republican Party is a minority party. By borrowing from pre-civil rights-era Southern states that used voting and election laws to manipulate the voting strength of the electorate, the GOP is determined to shrink the majority by reducing the number of elderly, poor, African-Americans, Latinos, and Asian-Americans voters.

For a state-by-state listing of voter restriction laws, see Laws Against Voting: State Statutes that Restrict Participation in 2012 by Project Vote.

I also recommend The Truth About Voter Fraud by the Brennan Center for Justice, for an analysis of voter fraud, finding that allegations of widespread voter fraud is greatly exaggerated.

Ralph E. Stone

I was born in Massachusetts; graduated from Middlebury College and Suffolk Law School; served as an officer in the Vietnam war; retired from the Federal Trade Commission (consumer and antitrust law); travel extensively with my wife Judi; and since retirement involved in domestic violence prevention and consumer issues.

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